case_text: In Johns v Australian Securities Commission at 460, Gaudron J recognised that in Foster v Mountford & Rigby Ltd (1976) 29 FLR 233 at p 238, Muirhead J enjoined a publisher on an interlocutory basis from continuing to publish and distribute a book revealing, in breach of an obligation of confidence on the part of the author, sites and objects of deep religious and cultural significance to particular Aboriginal claimant groups, and in Wheatley v Bell [1982] 2 NSWLR 544 at p 550, Helsham CJ (in Equity) enjoined on an interlocutory basis innocent licensees (described as parties who 'have already been licensed or chosen, or engaged, or are either purchasers or potential purchasers') of a promotional business system from using that system notwithstanding that they had apparently paid contracted amounts to a disclosee who had failed to observe an obligation of confidence to the plaintiff disclosor. Gaudron J noted at p 460 that the law had not developed to a point of identifying in a 'definitive or comprehensive way' the matters which would determine whether a duty of confidence might arise in a third party. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald & Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees.


case_outcome: cited

case_title: Wheatley v Bell [1982] 2 NSWLR 544


case_title: Fraser v Evans [1969] 1 Q.B. 349

case_text: Her Honour also noted the statement of principle of Lord Denning in Fraser v Evans [1969] 1 Q.B. 349 at p 361 to the effect that if a person 'comes by [confidential information] innocently, nevertheless once he gets to know that it was originally given in confidence he can be restrained from breaking that confidence' and the statement of principle of Goff J in Butler v Board of Trade [1971] Ch. 680 at 690 that 'an innocent recipient of information conveyed in breach of confidence is liable to be restrained'. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald & Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees.


case_title: Butler v Board of Trade [1971] Ch. 680

case_text: Her Honour also noted the statement of principle of Lord Denning in Fraser v Evans [1969] 1 Q.B. 349 at p 361 to the effect that if a person 'comes by [confidential information] innocently, nevertheless once he gets to know that it was originally given in confidence he can be restrained from breaking that confidence' and the statement of principle of Goff J in Butler v Board of Trade [1971] Ch. 680 at 690 that 'an innocent recipient of information conveyed in breach of confidence is liable to be restrained'.


case_text: These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. & G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R.] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'.


case_title: Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10


case_title: Prince Albert v Strange (1849) 1 Mac. & G. 25


case_title: Morison v Moat (1851) 9 Hare 241


case_title: Franklin v Giddins [1978] QdR 72

case_text: In Franklin v Giddins [1978] QdR 72 Dunn J made an order for the delivery up of nectarine trees by a female defendant who from a nominated date knew that an orchard conducted by her husband and herself contained nectarine trees propagated by a grafting process undertaken by her husband based upon budwood cuttings stolen by her husband from the plaintiff's orchard. Because the female defendant knew, from the relevant date, that the trees were propagated from a stolen trade secret Dunn J in reliance upon the observations of Greene M.R. in Saltman Engineering Co. Ltd v Campbell Engineering Co. Ltd (supra) at p 213, held that it was unconscionable for her to derive any benefit from the propagation and sale of the trees and thus she, like her husband, infringed the plaintiff's rights. 79 Since the female defendant jointly conducted the orchard with her husband (the first defendant), and became after knowledge of her husband's conduct an active participant in the continued use of the plaintiff's stolen trade secret, she became an accessory to the primary conduct and thus susceptible to an injunction (although undertakings were ultimately recorded) and delivery up of the trees. 80 No feature of this case involves the notion of a party acting bona fide and striking an arms-length contract with another prior to any notice of a contended breach of an obligation of confidence by such a party and then being enjoined from exercising rights under the contract, upon notice. Accordingly, the primary Judge addressing the O 15A r 6 application, observed [16] that the case of Franklin v Giddins involved use of confidential information by somebody who had obtained it from an infringer rather than a case adapted to the relevant circumstances of the present applicant.


case_text: There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined.


case_title: Australian Broadcasting Corporation v Lenah Meats Pty Ltd 54 IPR 161


case_title: Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501


case_text: In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 328; Liberty Financial Pty Ltd & Anor v Scott & Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy & Ormiston JJ at 711).


case_title: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310


case_title: Liberty Financial Pty Ltd & Anor v Scott & Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629


case_title: Pioneer Concrete Service Ltd v Galli (1985) VR 675


case_outcome: referred to

case_text: The Tribunal referred to the reasons for judgment of Branson J (with whom Beaumont and Merkel JJ agreed) in Flentjar v Repatriation Commission (1977) 48 ALD 1, where her Honour said that s 24(1)(c) of the Act raised four questions: 1 What was the relevant 'remunerative work that the veteran was undertaking' within the meaning of s 24(1)(c) of the Act? 2 Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3 If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4 If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? 28 The appellant submits that the line of reasoning adopted by the Tribunal involved the following steps. 29 First, as stated previously, the Tribunal found that the remunerative work that the respondent was undertaking within the terms of s 24(1)(c) was that as a truck driver, fork-lift driver, driver, storeman, process worker, labourer and general hand. 37 First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4.


case_text: First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4. 39 In view of the last point, some general matters about the scope and operation of s 24(1)(c) should be noted. First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word 'alone', and the issue is to be approached in a practical, common-sense, fashion. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said (at 538-539): 'I was referred to the Tribunal decision of Davies J, then President of the Tribunal, in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571. Davies J there cited passages from Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122, and Re Apthorpe and Repatriation Commission (1986) 9 ALN N157, a Tribunal decision, each of which emphasises that what must prevent the veteran from continuing to undertake remunerative work, in order to satisfy par (c), must be the war-related incapacity, and that incapacity alone. As was pointed out in Lucas 's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. But Davies J went on to say: "I would not, however, substitute for the word "alone" the description "sole, unique and absolute cause" as stated in Re Repatriation Commission and Cavell (unreported, No 2891, 19 September 1986) ... . In the absence of ambiguity, other words should not be used in place of the words used by the legislation." With respect, I entirely concur in the comment made by Davies J. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the Tribunal to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.'


case_text: First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4.


case_title: Doig v Repatriation Commission (1996) (unreported, Federal Court of Australia, Lindgren J, 18 December 1996)

case_text: First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4. 38 Secondly (and this is perhaps no more than the development of the first point), the issue requires the decision maker to identify the 'substantive remunerative work' that the veteran has undertaken in the past: Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], or the 'substantial remunerative work that he has undertaken in the past': Starevich v Repatriation Commission (supra) per Fox J at 225. Thirdly, in Doig v Repatriation Commission (supra), Lindgren J said that the appropriateness of any particular description of work that has been undertaken is governed by the purpose of the description, and in cases under s 24(1)(c), that purpose is one related to capacity to work.


case_text: Secondly (and this is perhaps no more than the development of the first point), the issue requires the decision maker to identify the 'substantive remunerative work' that the veteran has undertaken in the past: Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], or the 'substantial remunerative work that he has undertaken in the past': Starevich v Repatriation Commission (supra) per Fox J at 225. Thirdly, in Doig v Repatriation Commission (supra), Lindgren J said that the appropriateness of any particular description of work that has been undertaken is governed by the purpose of the description, and in cases under s 24(1)(c), that purpose is one related to capacity to work. 40 Secondly, factors other than war-caused injuries may be relevant, even if they are not of themselves sufficient to prevent the veteran undertaking remunerative work he or she was undertaking: Repatriation Commission v Hendy (supra) at 54 [37]. 41 Of course, in addition to showing that the war-caused injuries alone prevented the veteran from continuing to undertake remunerative work, the veteran must show that, by reason of being prevented from undertaking remunerative work, he or she is suffering a loss of salary or wages, or of earnings on his or her own account that the veteran would not be suffering if the veteran were free of that incapacity. 42 It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran's qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time.


case_text: In view of the last point, some general matters about the scope and operation of s 24(1)(c) should be noted. First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word 'alone', and the issue is to be approached in a practical, common-sense, fashion. In Cavell v Repatriation Commission (1988) 9 AAR 534, Burchett J said (at 538-539): 'I was referred to the Tribunal decision of Davies J, then President of the Tribunal, in Re Easton and Repatriation Commission (1987) 6 AAR 558 at 570-571. Davies J there cited passages from Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122, and Re Apthorpe and Repatriation Commission (1986) 9 ALN N157, a Tribunal decision, each of which emphasises that what must prevent the veteran from continuing to undertake remunerative work, in order to satisfy par (c), must be the war-related incapacity, and that incapacity alone. As was pointed out in Lucas 's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. But Davies J went on to say: "I would not, however, substitute for the word "alone" the description "sole, unique and absolute cause" as stated in Re Repatriation Commission and Cavell (unreported, No 2891, 19 September 1986) ... . In the absence of ambiguity, other words should not be used in place of the words used by the legislation." With respect, I entirely concur in the comment made by Davies J. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the Tribunal to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.'


case_text: Tribunal concluded that the kind of fear which the appellant so described is a "daily reality" for all Israelis. It noted that, following the decision of the High Court in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1 , a person does not fear persecution for a Convention reason if the fear is one of generalised violence, internal turmoil or civil war where that person or her immediate family is not personally attacked for a particular Convention reason. Hence, although it accepted her fear about living in an environment of tension and uncertainty, it was not satisfied that her fear was a fear of persecution for a Convention reason. The generalised violence, which she feared, would not impact differentially upon her due to her civil or political status, that is the basis upon which she made claims to have been a refugee.


case_outcome: discussed

case_text: then added, in the passage to which attention was drawn on the appeal, the following: Secondarily, the applicant drew attention to legal obligations required of her to serve in the Israeli army in the future, when she will be exposed to more danger. The Tribunal notes that independent country information corroborates the explanation of compulsory military service given by the applicant. The Tribunal notes that the enforcement of laws providing for compulsory military service (and for punishment of desertion or avoidance of such service) does not provide a basis for a claim of persecution within the meaning of the Convention: Mijoljevic v MIMA [1999] FCA 834. The Tribunal finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application. The appeal before the Federal Magistrate concentrated on that particular passage. The contention was that the Tribunal had failed to identify that the appellant had made a claim to have been a conscientious objector, that is to have conscientiously objected to undertaking compulsory military service or further military service in Israel, and that as a result she may be persecuted by the Israeli authorities. The Federal Magistrate pointed out that the Tribunal had not accurately reflected the observations of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 in that passage. Her Honour in that decision at [23] said that it is ordinarily the case that a basis for a claim of persecution within the meaning of the Convention will not flow from the enforcement of laws providing for compulsory military service, or for the punishment of those who avoid such service. The Federal Magistrate then referred to the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 , in particular at [28] where Gray J said: The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason.


case_title: Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 ; (2002) 122 FCR 150

case_text: Federal Magistrate pointed out that the Tribunal had not accurately reflected the observations of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 in that passage. Her Honour in that decision at [23] said that it is ordinarily the case that a basis for a claim of persecution within the meaning of the Convention will not flow from the enforcement of laws providing for compulsory military service, or for the punishment of those who avoid such service. The Federal Magistrate then referred to the decision of Gray J in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 , in particular at [28] where Gray J said: The question would have to be asked whether conscientious objectors, or some particular class of them, could constitute a particular social group. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason.


case_text: third matter argued before the Federal Magistrate was that the Tribunal had failed to conduct a hearing in accordance with s 425 of the Act because it had not given the appellant a substantial opportunity to give evidence and to present arguments in relation to her claim to have been a conscientious objector and to have a well-founded fear of persecution by reason of that claim. The Federal Magistrate concluded, having reviewed the hearing before the Tribunal, that the appellant had the opportunity to raise with the Tribunal any decision by her to refuse to perform military service on the part-time basis required of her if she were to return to Israel, but that she but did not do so. His Honour noticed, correctly, that the main focus of the appellant before the Tribunal was her fear to return to Israel principally from fear for her physical safety given the terrorist threats to the country. He did not consider that the exploration of those issues by the Tribunal was conducted in a way which dissuaded or discouraged her from pursuing an aspect of her claim: cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456. Each of those three matters was reargued on appeal, and in respect of each of them counsel for the appellant argued that the Federal Magistrate had erred in his approach to those three matters. In essence, however, the argument centred upon and depended upon the appellant persuading the Court that the Federal Magistrate had erred in not identifying that the appellant had raised before the Tribunal an unarticulated claim to have a well-founded fear of persecution by reason of how she might be treated by the Israeli authorities were she to return to Israel and in face of her conscientious objection which (it was argued) she had signalled to the Tribunal.


case_text: have identified the focus of submissions on the appeal in that way because, notwithstanding the general observations of the Tribunal set out in [6] above which may demonstrate legal error, they do not do so relevantly except in the context of a claim by the appellant to be a conscientious objector. I would otherwise read the Tribunal's observations in that passage, with an eye not keenly attuned to the perception of error (see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280) , as indicating no more than that the enforcement of laws for compulsory military service do not of themselves provide a basis for a claim of persecution merely because those obliged to undertake compulsory military service might thereby be at greater risk than civilians. If the appellant were not in fact a conscientious objector, there was nothing to indicate that she was required to undertake compulsory military service for a Convention reason or that she would then be treated differently whilst doing so for a Convention reason. Indeed, counsel for the appellant appeared to accept as much. At one point, he said that the error discussed by the Federal Magistrate flowed from failing to ask what would happen to the appellant if she is a conscientious objector.


case_text: the making of a claim, either articulated or implied, that the appellant feared persecution for a Convention reason if she were to conscientiously object to further undertaking compulsory military service in Israel, the "behaviour modification" considerations addressed for example in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 do not relevantly arise. The second contention is that the appellant's material exposed an unarticulated claim to fear persecution, in effect for a political opinion, by being a conscientious objector to undertaking compulsory military service if she were to return to Israel. She had, on the material, previously undertaken a period of compulsory military service between 2000 and 2002. It was also clearly accepted by the Tribunal that she would have to undertake a further 30 days' military service each year until the age of 35. She said in her application for the protection visa that, if called up, "it will be more risky for me if I'll (sic) have to take that call in this situation". In the same document, she said: I think all the people that [are] responsible to (sic, for) this situation in Israel if it's the Hizballa (sic), or the Israely (sic) government that just can't get to an agreement to stop the terrorism for long long years. In her written statement to the Tribunal, the appellant wrote: I'm not saying that I agree with the Israeli government and the actions that they take as a responds (sic) to the bombing, I find the suffer[ing] of the other side really horrible, but I'm just against this hole (sic) situation, I feel sad for both sides with the lost that they're suffering, I believe no one should die in this long war that just doesn't stop since I remember myself, since I was a little girl I remember bombing and killing in behalf of (sic) this war ... and a little later she added: ... if I'll (sic) go back to Israel, as I wrote in my request all Israelis (sic) girls that serve the army in a job similar to mine have to serve again every year for 30 days, and if I'll (sic) go back while the security situation is so unknown and might get worse in short time the army will defiantly (sic, definitely) call me to serve my time and this might make my chances to die bigger. Her oral evidence to the Tribunal included the following: Tell me: why do you think you're a refugee? Tell me slowly. Okay. Israel as we all know, it's a really hard place to live. Like, apparently all of our neighbours just want to get all the Israelis out of Israel and have the country for themselves. So some people living in Israel just choose to live with this situation, just look at it as an ordinary thing, like you wake up in the morning, maybe one of the buses right next to you will blow up and people will be dying and life goes on. I don't think I don't see it that way, just ... and I just couldn't go back to the mess in Israel. That's the only thing. I just think that what's going on is wrong what's going on in our side and also in their side, what our army doing to them it's also wrong. I just can't live with it being and this is why I think I just I need you to let me stay here. And in relation to further army service, she said: And if I won't go, so they just come and take me and put me in gaol or something like that. Yes, I understand how it works. This applies to all Israeli citizens? Yes. ... Well, I can live my life as I did before I came here, and just in fear that the next place that I'm going to be is going to blow up by a terrorist or something. And also the army it's also arrest you to go back there and something can happen. You're just frightened to go back there. After that passage, the Tribunal asked her who was persecuting her. It pointed to the Convention reasons: race, religion, nationality "and so on", and it suggested that she did not fit neatly into the category of persons persecuted by their own government. She responded by saying the government could not protect her from Palestinian or other terrorist acts.


case_text: Tribunal was obliged to deal with any claim raised by the evidence or contentions which, if resolved in one way, could resolve the application: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [63] provided the claim has been squarely raised. As noted, the Federal Magistrate properly identified that obligation. However, his Honour did not consider that there was any unarticulated claim for refugee status on the basis of a fear of persecution arising from a conscientious objection to military service. In my judgment, the Federal Magistrate erred in that conclusion. Clearly, the appellant's main concern was that she and all Israeli citizens may be exposed to Palestinian or other terrorist violence, and that the Israeli authorities are unable to protect its citizens from such acts. Whether as a civilian or while doing compulsory military service, that fear (as the Tribunal found) was not one for a Convention reason. There is no challenge to that conclusion before the Federal Magistrate, and hence on this appeal. However, in my view, there was also squarely raised on the material a claim that the appellant feared persecution by reason of being a conscientious objector to further compulsory military service. That claim was not addressed by the Tribunal. It should have been. If it was, and if it was addressed in the manner set out in [6] above, that claim would have been incorrectly addressed for the reasons discussed by the Federal Magistrate. The Tribunal would have needed to consider, in the appellant's particular circumstances, the reason for her objection to compulsory military service to determine whether the consequence of such objection might amount to persecution for a Convention reason. Those questions were not considered by the Tribunal. The claim was not specifically articulated, but in the passages I have referred to it is apparent that: (1) the appellant expressed criticism not simply of the Palestinian or other terrorist activities but also of the response of the Israeli government; (2) she did not see the situation as "an ordinary thing" where she would simply live with that situation; and (3) she adverted on two occasions to the prospect of being imprisoned by the Israeli government for refusing to do further compulsory military service, and (on one of those occasions) of a fear of that consequence.


case_outcome: affirmed

case_text: This is an appeal to the Federal Court from the decision of Federal Magistrate Turner in Singh & Ors v Minister for Immigration & Anor [2007] FMCA 1739 given on 9 November 2007. 2 His Honour found that by operation of s 46 of the Migration Act 1958 (Cth) (the Act), the first appellant could not make a valid application for a Graduate Skilled (Class UQ) (Temporary), Subclass 497 visa lodged on 25 March 2002. His Honour concluded that the Migration Review Tribunal (the Tribunal) had made no error of law in reaching that conclusion. 3 The appeal to this Court, while it has to be seen against a very extended and extensive history of litigation, ultimately involves a short point: the appellant contends that as condition 8534 of Schedule 8 of the Migration Regulations 1994 (Migration Regulations) does not contain the phrase "despite anything else in this Act", it is not a condition described in s 41(2)(a) of the Act, and therefore, s 46(1A) has no application to an application by a person who holds a visa that is subject to condition 8534. 4 For the reasons which follow, I am satisfied that condition 8534 is a condition described in s 41(2)(a) of the Act, and the Tribunal and the Federal Magistrate were right to so conclude. The consequence is that the appeal has to be dismissed with costs. 5 What follows are my reasons for that conclusion.


case_outcome: applied

case_text: regard to at least some of the evidence led before the Tribunal, supervisors of the applicant employed by the respondent and those associated with implementing his rehabilitation scheme possibly together with the members of Tribunal may have formed the view that the applicant was an extremely difficult person at best indifferent to the efforts of those trying to rehabilitate him and perhaps even unworthy of any sympathy. The Tribunal may also have found entirely unattractive the suggestion that the applicant's consumption of narcotic drugs to deal with the symptoms it thought were grossly exaggerated could be thought to justify, because it provided a reasonable excuse, his failure to comply with the rehabilitation program. However the SRC Act is beneficial legislation intended to operate for the benefit of injured employees whatever their personal attributes. If in fact the applicant's drug consumption prevented him from travelling to work then a finding to that effect would at least raise a question about whether there existed a reasonable excuse. In my opinion, the Tribunal was under a duty to consider the argument and reach and express a conclusion about it. It failed to address a case of substance advanced on behalf of the applicant and, in so doing, erred in law: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 ; (2004) 136 FCR 47 per Tamberlin, Sackville and Selway JJ at [26]. It is unnecessary to address the other grounds seeking to impugn the Tribunal's decision affirming, indirectly, the decision to suspend the applicant's rights to compensation. I deal briefly with the Tribunal's decision concerning compensation for cleaning services. The only ground challenging the Tribunal's affirming, indirectly, the respondent's decision that it was no longer liable to pay compensation for household cleaning services, was that the Tribunal did not give reasons for doing so. However, as best I can glean from the transcript, the challenge to that decision assumed no real prominence at the hearing before the Tribunal. Whether or not the applicant was entitled to compensation for household cleaning depended upon whether his work related injury limited his capacity to clean himself. As I have already explained, the Tribunal rejected, in fairly robust terms, the applicant's evidence about the disabling effect of his injury. Necessarily this involved a rejection of the contention that his injury prevented him from undertaking household cleaning. Little more was probably required by the Tribunal to indicate its rejection of the applicant's claim that the compensation for household cleaning services should have continued. I am not satisfied that the Tribunal erred, in this respect, as alleged. I propose to set aside the Tribunal's decision in relation to the suspension of rights to compensation and remit the matter but otherwise dismiss the appeal and application. As the applicant has had substantial success in its appeal, he is, in my opinion, entitled to his costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 13 November 2009 Counsel for the Applicant: D Richards Counsel for the Respondent: P Jones Solicitor for the Applicant: Slater and Gordon Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 October 2009 Date of Judgment: 13 November 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1290.html


case_text: Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other. Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15].


case_title: Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited [2006] FCA 1416


case_title: Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905


case_title: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372

case_text: Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 ; (2008) 167 FCR 372 , Finkelstein J at [22] suggested, in these terms, that s 31A of the Act had raised the bar in resisting dismissal of a proceeding: If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of the evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits . It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial. [emphasis added] Justice Gordon in Jefferson Ford at [126] suggested that an assessment of whether a proceeding has no reasonable prospect of success requires an analysis of the pleadings, an assessment of the facts and, in part at least, a review of some of the evidence. In the present proceeding, there has been no engagement by the respondents with the amended pleading. That partly arises because the respondents contend that the amended pleading fails to plead material facts which establish, if proved, a cause of action based on accessorial liability on the part of Mr Sasse. Therefore, there can be no relevant engagement or an assessment in terms of the methodology contemplated by either Gordon J or Finkelstein J. Moreover, there can be no proper assessment of whether there is a genuine dispute as to factual matters as the material threshold facts have not been pleaded. The applicants say that the pleading properly asserts material facts from which, if proved, accessorial liability in Mr Sasse can be established. Nevertheless, the applicants say that the application by the respondents is premature and, in any event, the application should be treated as an application going to the adequacy of the amended pleading. If the Court is not satisfied that the amended pleading properly frames material facts establishing a cause of action in accessorial liability, the relevant paragraphs of the pleading ought to be dismissed and the applicants ought to be given leave to re-plead the claims. The first question then is whether the amended pleading properly frames a cause of action in accessorial liability on the part of Mr Sasse. The statutory framework


case_text: pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke & Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd & Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121).


case_title: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473


case_title: Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302


case_title: Rural Press Ltd & Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236


case_title: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466


case_title: Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121


case_text: Second, the Act clearly sets the parameters for the operation of principles of natural justice, and excludes relevant common law rules: MIMA v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 and SZCIJ v MIMIA [2006] FCAFC 62. Section 422B(1) provides: (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.


case_title: SZCIJ v MIMIA [2006] FCAFC 62


case_title: SZEEU v MIMIA [2006] FCAFC 2

case_text: In considering the Tribunal's decision in light of the claims made by the appellant, Nicholls FM found that the letter of 15 January 2005 from the President of Jatiya Party was provided by the appellant for the purpose of the review and falls within the exception of s 424A(3)(b) of the Act . It was the appellant's lack of credibility which made the Tribunal unable to give weight to the document, as distinct from information about the prevalence of document fraud in Bangladesh. Findings in respect of the credibility of the appellant were matters for the Tribunal: McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 423. However, even if the Tribunal had relied on the prevalence of document fraud in Bangladesh it would fall within the exception of s 424A(3)(a) of the Act . His Honour found that there was no statutory obligation of the Tribunal to provide an opportunity to the applicant to comment on the these adverse findings of the Tribunal, as such adverse findings are not "information" for the purposes of s 424A ( SZEEU v MIMIA [2006] FCAFC 2 at [20] , [28]). 13 In relation to the claims of a denial of procedural fairness at common law, Nicholls FM noted that the Tribunal in its decision said it had alerted the applicant to country information as to the prevalence of document fraud in Bangladesh. Similarly, the Tribunal had drawn attention to the fact that it could give not weight to the documents because of the adverse view it had taken of the appellant's credibility. In the absence of evidence provided by the applicant, the Court was unable to accept a submission of the applicant challenging these statements of the Tribunal. 14 In response to the claims of the appellant at the hearing that he was a politician, not a dentist, and that he was denied another hearing to prove this, Nicholls FM found that the applicant's request for another hearing was in response to the letter of the Tribunal and must be seen in that context. The Tribunal complied with its statutory obligations under s 425 of the Act . To the extent that natural justice in the context of Tribunal hearings is addressed exhaustively in Div 4 of Pt 7 of the Act , any complaint of a denial of natural justice at common law could not succeed. However even if s 422B did not operate, the Federal Magistrate asserted such a claim still would not succeed in these circumstances.


case_outcome: followed

case_text: This approach is consistent with that expressed by Mansfield J in Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389 at [38] , [40]. 91 Accepting therefore that the exercise of the power is confined to the purpose stated by Deane J, the question then is whether it follows from the concessions made by Mr Pearson that the Notice was issued other than for the administrative function of determining whether proceedings should be instituted. 92 It is true that Mr Pearson accepted that the information sought by the Notice does not go to establishing any element of a breach of the provisions of s 45(2)(a) or (b) of the Act. But, in my opinion, it does not follow that the decision to issue and serve the Notice was for an improper purpose. There are two reasons for this. 102 Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan . Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. 119 The short answer to KAL's submission is that the evidence before me demonstrates that the purpose of the ACCC in deciding to issue the Notice was to obtain evidence of the extent of any contraventions by KAL and evidence going to the quantum of any penalty. All of this might ultimately be used in the event that the ACCC decides to commence proceedings. This purpose falls "squarely within the Act": Rural Press at [40]. 120 Reference was made in cross-examination of Mr Pearson to the ACCC's knowledge of difficulties encountered in obtaining an order for discovery and interrogatories in existing proceedings. It has not been demonstrated that this was an actuating purpose in the decision to serve the Notice. 121 The application will be dismissed. I will hear the parties briefly on the question of costs. I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 15 May 2008 Counsel for the Applicant: S Gageler SC with M Darke Solicitor for the Applicant: Clayton Utz Counsel for the Respondent: A Robertson SC, T Howe QC and R A Dick Solicitor for the Respondent: Australian Government Solicitor Date of hearing: 7 April 2008 Date of Judgment: 15 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/701.html


case_text: In Brown v Commissioner of Taxation at [184] [185], Emmett J considered that s 131(2)(g) will apply where the Court would be likely to be misled as to the existence or contents of an excluded communication where those matters are in issue in the proceedings: see also Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [7] .


case_text: Nor, in my view, does the statement of Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 at 189 support the view that the power automatically ceases when the proceedings have been commenced. 104 It seems to me that the effect of what Franki J said was captured in the words of Gibbs CJ in Pioneer Concrete at 467-468. Thus, if the power were used to assist a party in proceedings already pending, in a way that would confer an advantage which the procedures of the Court would otherwise deny, there would be a contempt; however, not every investigation into facts the subject of an existing proceeding constitutes a contempt. 105 In any event, whether or not the question of law is decided favourably to KAL, the contention fails at the factual level because I am not satisfied that the ACCC had decided to commence proceedings. 106 Ultimately, Mr Gageler conceded that there was no decision by the ACCC to commence proceedings and he accepted that there was no recommendation to the ACCC that proceedings be commenced. However, he adhered to the submission that, as at 31 October 2007, there had for some time been a very firm intention, contemplation or expectation that proceedings would be commenced subject only to the ACCC being satisfied of the sufficiency of evidence of a contravention of s 45.


case_text: It is implicit in the remarks of Emmett J in Brown v Commissioner of Taxation (2001) 187 ALR 714 at [172] [174] that the same position applies under s 131 of the Evidence Act . 78 In Brown v Commissioner of Taxation at [184] [185], Emmett J considered that s 131(2)(g) will apply where the Court would be likely to be misled as to the existence or contents of an excluded communication where those matters are in issue in the proceedings: see also Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [7] .


case_text: In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11.


case_text: The decision of the Full Court in Pioneer Concrete was upheld on appeal to the High Court: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. Mason J at 474 agreed with the analysis of Deane J in the Full Court of the Federal Court. See also Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477 at 516-517 (note 62) per Brennan J.


case_text: I do not consider that this confines the nature of the dispute to one which is the subject of existing proceedings. To do so would be contrary to the rationale for the existence of the privilege which is to enable parties to engage in negotiations aimed at the settlement of litigation: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 at 291-292; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [27]. 72 The statutory requirement that the communication be "in connection with an attempt to negotiate a settlement" reflects the language used by the High Court in Field at 293. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations.


case_text: Nor is there any substance in the suggestion that the privilege does not apply because the "dispute" concerning the air cargo investigation is different from the dispute which is the subject matter of these proceedings: First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266 at [33] [34].


case_text: I do not consider that this confines the nature of the dispute to one which is the subject of existing proceedings. To do so would be contrary to the rationale for the existence of the privilege which is to enable parties to engage in negotiations aimed at the settlement of litigation: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 at 291-292; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [27]. 68 The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] [29].


case_text: The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd (In Liq) v Yuill (1997) 42 NSWLR 225 at 226. 75 Mr Owbridge's proposal to Mr Lloyd fell within this description. 76 Two requirements must be satisfied for an otherwise privileged communication to fall within the exception stated in s 131(2)(g). First, other evidence must have already been adduced which would be likely to mislead the court unless evidence of the without prejudice communication is adduced.


case_title: Harrington v Lowe (1996) 190 CLR 311

case_text: The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] [29].


case_title: Jones v Dunkel (1959) 101 CLR 298

case_text: Nor do I consider that the principle in Jones v Dunkel (1959) 101 CLR 298 is enlivened by the failure of the ACCC to call Mr Samuel or the members of staff who prepared the Reason to Believe paper. There are limits on the use which can be made of Jones v Dunkel in administrative law proceedings. This is not a case in which the inferences sought to be drawn by KAL would be hard to resist in the absence of evidence from the author of the documents: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [92] , [143], [316] [317] and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . 117 KAL relied on a number of matters to support an inference that the purpose for which the Notice was issued was an improper one, namely that the ACCC believed it may not be able to obtain the information through the Court's processes once it had commenced proceedings.


case_text: Other decisions of the Full Court of the Federal Court are to the same effect as the statement of principle of Deane J in Pioneer Concrete: see Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 at 514 per Davies and Foster JJ; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 at [48] per Sackville and Emmett JJ. 96 Second, as Lockhart J observed in Kotan at 522, the use of s 155 for the purpose of obtaining evidence to be tendered in penalty proceedings on the question of the quantum of any penalty is a legitimate use of the power. This view is consistent with the observation of Mason J in Pioneer Concrete at 472 that the discharge of the Commission's administrative functions under the Act: ... include the investigation of alleged breaches, the acquisition of information and the obtaining of evidence for submission to the Court in proceedings in respect of a contravention. 97 KAL's contention that the power to issue the Notice had ceased, or was "spent", depends upon whether I am satisfied that the ACCC had decided, either formally or informally, to commence proceedings against KAL at the time when the decision was made to issue the Notice. 98 An affirmative answer to that question would not necessarily lead to a finding that the power was spent. This is because a question of law would then arise as to whether a decision by the ACCC to institute proceedings against KAL bars it from thereafter exercising the power to issue a notice under s 155 of the Act. 99 The question of law is a debateable one. It cannot rise above the statement of Davies and Foster JJ in Kotan at 516 that there may be an arguable case that the power to issue a s 155 notice ceases when the Commission has formally resolved that legal proceedings be commenced. But there are other indications that this proposition does not accurately state the law. 100 First, Davies and Foster JJ thought the preferable view to be to the contrary. Second, Lockhart J was inclined to the view that the power to issue a notice under s 155 does not end and is not abused merely because the Commission has made a decision to institute proceedings against the addressee of a proposed notice. His Honour went on to say that whether the power to issue a notice is abused is a question of fact to be determined in all of the circumstances: Kotan at 521. 101 Third, Lockhart J's view is supported by the observations of French J in Shannahan v Trade Practices Commission [1991] FCA 95 ; (1991) 28 FCR 239 at 244. (See also French J at first instance in Re Kotan Holdings Pty Ltd & Ors v Trade Practices Commission [1991] FCA 273 ; (1991) 13 ATPR 41-122 at [7] ). His Honour said that there is nothing in the terms, context or purpose of s 155 to indicate that the power is compromised by the Commission having decided to commence proceedings. 102 Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan . Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. 113 In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. 115 In my opinion, this distinction supports the view expressed in Kotan because it reaffirms the principle that it is only the Commissioners who have the power to institute proceedings.


case_outcome: distinguished

case_title: Moran v Moran (No 3) [2000] NSWSC 151

case_text: KAL submitted that the evidence of the conversation was admissible under s 131(2)(g) because, without it, I would have only part of the picture in respect of an important aspect of KAL's case: Moran v Moran (No 3) [2000] NSWSC 151 at [13] . However, in my view, that is not the whole of the test which is stated in s 131(2)(g) and, ultimately, 84 The high watermark of KAL's attack on the validity of the Notice is to be found in the concessions which Mr Gageler obtained from Mr Pearson and to which I referred in the introduction. The essential point which arises is whether, in light of Mr Pearson's concession that the information sought in the Notice is not required to establish a contravention of s 45(2)(a) or (b), it can nevertheless be said that the power was exercised for the purpose for which it was conferred. 85 The answer to this question turns upon a consideration of the authorities on the ambit of the power and upon Mr Pearson's other evidence.


case_title: O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1


case_title: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460


case_text: Earlier, in Riley McKay Pty Limited v Bannerman [1977] FCA 7 ; (1977) 15 ALR 561 at 566, Bowen CJ said that the power must be exercised for the purposes for which it is given and not otherwise; that is, to assist the Commission in the exercise of its functions. Bowen CJ reiterated that view in Pioneer Concrete at 84. Sheppard J agreed with both the Chief Justice and Deane J.


case_title: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608


case_text: Here, it is sufficiently clear from the terms of the conversation between Mr Owbridge and Mr Lloyd and the background which I have recounted that there was a likelihood of litigation if the settlement proposal was not accepted. In my view, that was sufficient to constitute a "dispute" for the purposes of s 131(1)(a) and s 131(5)(a) of the Evidence Act : Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 at 73-74. 73 The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Trade Practices Commission v Arnotts at 72-73.


case_text: KAL therefore submitted that the purpose for which the Notice was issued exceeded the limits of the power to issue a Notice under s 155. The clearest statement of the principle which underlies KAL's attack on the decision to issue the Notice is to be found in the words of Deane J in Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1982) 55 FLR 77 at 95. 11 In the relevant passage from Deane J's judgment, his Honour said that the power conferred under s 155 is to be used only for the purpose: ...of the performance by the Commission of the administrative function of determining whether proceedings should be instituted by the Commission... 12 KAL contends that this principle is infringed so as to enliven the grounds of review stated in ss 5(1)(d), 5(1)(e) and 5(2)(c) of the ADJR Act . 13 However, this contention must of course be looked at in light of the evidence as a whole, including in particular other evidence given by Mr Pearson as to the circumstances which existed at the time when the decision to issue the Notice was made. 86 A consideration of the authorities supports the view of Deane J in the Full Federal Court of the Federal Court in Pioneer Concrete that the power is to be used only for the performance of the administrative function of determining whether proceedings should be instituted.


case_text: Other decisions of the Full Court of the Federal Court are to the same effect as the statement of principle of Deane J in Pioneer Concrete: see Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 at 514 per Davies and Foster JJ; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 at [48] per Sackville and Emmett JJ.


case_text: I do not consider that the decision of a Full Court in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [84] assists KAL. Lander J at [84], with whom Moore J at [1] and Weinberg J at [23] agreed, accepted that a distinction is to be drawn between the power to commence proceedings which is only exercisable by the Commissioners, and contemplation of litigation by ACCC staff for the purpose of determining a claim for legal professional privilege.


case_text: judgment of the Federal Magistrate refusing reinstatement is not attended by sufficient doubt to warrant its being reconsidered. It is supported by Full Court authority in NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [24] where their Honours held that the certificate in question did not identify a medical condition or explain why it would prevent the applicant from appearing in Court. No substantive injustice would arise if leave were refused as the Court below carefully considered the merits of the applicant's substantive application and persuasively reasoned that it had no merit. The applicant's challenge to the Tribunal's decision essentially concerned questions of fact rather than the identification of judicially reviewable errors. His Honour correctly found that there was no arguable case for judicial review. The application for leave to appeal is dismissed with costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 18 May 2009 The Appellant appeared for himself. Counsel for the Respondents: Mr B Wee Solicitor for the Respondents: DLA Phillips Fox Date of Hearing: 18 May 2009 Date of Judgment: 18 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/506.html


case_text: I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities


case_title: Briglia v Commissioner of Taxation (2000) 44 ATR 166


case_text: Secondly, as the reference in s 177(1) indicates, a person dissatisfied with an assessment has a full right of challenge under Part IVC of the Taxation Administration Act 1953 (Cth) and the grounds upon which an assessment may be challenged are broad. In Deputy Commissioner v Richard Walter Pty Ltd [1995] HCA 23 ; (1995) 183 CLR 168 (' Richard Walter ') Brennan J said (at 195): 'The challenge may be made before either an administrative or a judicial tribunal (at the taxpayer's election) on any ground which affects the taxpayer's liability to tax or the quantum thereof including the Commissioner's power to make the assessment to which the taxpayer has objected.' 39 In the absence of detailed submissions I will refrain from expressing a concluded view on this point, and I turn to consider the second question, namely, whether a breach of the hearing rule under the Act could arguably give rise to a successful claim for relief under s 39B of the Judiciary Act . 40 The High Court considered the effect s 175 and s 177 of the Act in Richard Walter . At least a majority of the Court considered that an assessment cannot be challenged on an application under s 39B of the Judiciary Act unless one of the three matters identified by Dixon J (as he then was) in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 (' Hickman ') is established. In a well-known passage dealing with the effect of a privative clause, Dixon J said (at 615): 'Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.' 41 In Richard Walter , Mason CJ referred to this as a principle which had gained acceptance (at 179) and Brennan J (as he then was) referred to it as a principle of construction which should be applied to s 175 of the Act (at 195). Deane and Gaudron JJ took a similar view to that expressed by Brennan J. Their Honours said (at 211): 'That approach should, in our view, be applied to the construction of s 175 of the Act. The result of its application is that s 175's protection from invalidity is applicable only if the purported "assessment" (i) is "a bona fide attempt" by the Commissioner or other authorised officer to exercise powers conferred by the Act, (ii) "relates to the subject matter" of the Act and (iii) "is reasonably capable of reference to" those powers. If a purported "assessment" does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported "assessment" will be invalid. That being so, s 177(1) of the Act is inconsistent with s 75(v) of the Constitution to the extent that it purports to make a certificate of the Commissioner or a Second or Deputy Commissioner conclusive evidence of the due making of an assessment in proceedings in the original jurisdiction of this Court under s 75(v) in which it is alleged that the assessment does not satisfy one or more of those requirements. In what follows, references to an assessment (or a determination) not being "bona fide" should be understood as encompassing not only failure to satisfy the first requirement but also a failure to satisfy either the second or third.' 43 It seems to me that unless Richard Walter has been overruled by the High Court, it is binding on me and the applicant's claim for relief under s 39B of the Judiciary Act insofar as it is based on an alleged breach of the hearing rule arising at common law cannot succeed. 44 The applicant submitted that the High Court adopted a line of reasoning in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' S157 ') which suggests a different approach will now be taken to privative clauses or the like than that taken in Richard Walter . In particular, the applicant submitted that the decision in S157 meant a breach of the rules of procedural fairness may not be protected by a privative clause or the like. In S157 , the Court held that the privative clause in the Migration Act did not prevent judicial review of decisions which involved jurisdictional error. 45 Gleeson CJ said that in the particular statutory context of the Migration Act the privative clause did not operate to exclude judicial review for breach of the requirements of natural justice (at 493-494 [35]-[38]). His Honour did not disapprove of Hickman ; he said that as a matter of statutory construction it did not contain the relevant principles for the case before him. He referred to the decision in Richard Walter on two occasions without disapproval (at 484 [11], 488 [19]). Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that Hickman was not a principle but 'simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions' (at 501 [60]). There is no general rule as to the meaning or effect of a privative clause. Their Honours said (at 501 [60]) (footnotes omitted): 'Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.' 46 Their Honours cited Richard Walter without disapproval. Callinan J adopted a similar approach (at 533-534 [159]). 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities 48 I summarise my conclusions with respect to the applicant's fourth claim as follows. There is no arguable case of bad faith. There is no arguable case of a breach of s 166 and, even if there was, there is no arguable case that such a breach affects the validity of the assessment. Even if at common law there was an obligation to observe the hearing rule in connection with the making of an assessment the decision in Richard Walter means that there is no arguable case that a breach of such an obligation can form the basis of a successful challenge under s 39B of the Judiciary Act . 49 In my opinion, none of the applicant's claims are arguable. In those circumstances, an order should be made dismissing the proceeding. I will hear the parties as to costs and other orders. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 23 March 2007 Counsel for the Applicant: Mr M Hoile Solicitor for the Applicant: McNamara Business & Property Law Counsel for the Respondent: Mr R Ross-Smith Solicitor for the Respondent: Australian Taxation Office Legal Services Branch Date of Hearing: 29 August 2006 Date of Judgment: 23 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/394.html


case_title: Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371


case_title: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642


case_text: It is not necessary for me to consider the extent, if any, to which this section relaxes the well-established test enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 because I have reached the conclusion, by a reference to that test, that this proceeding must be dismissed. In my opinion, no reasonable cause of action is disclosed in the proceeding. 6 To date, the action has proceeded on affidavits (O 4 r 6). On the hearing of the respondent's application I received affidavits filed and served on behalf of the applicant and affidavits filed and served on behalf of the respondent. I have treated the statements made by the applicant in his affidavits in a similar way to allegations in a statement of claim. In other words, on this application I have taken them to be correct. I have not attempted to resolve any disputed issues of fact, and the respondent did not suggest that it was appropriate that I do that. 7 I start by summarising the key allegations made by the applicant as set out in two affidavits of Mr Pantelis Charitopoulos, who is a director of the applicant. He was appointed to that position on 18 November 2005. The other directors of the applicant have been directors for a number of years. They are Mr George Charitopoulos and Ms Rosa Charitopoulos. I will refer to them as Mr Charitopoulos' parents.


case_outcome: considered

case_text: The applicant submitted that the High Court adopted a line of reasoning in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' S157 ') which suggests a different approach will now be taken to privative clauses or the like than that taken in Richard Walter . In particular, the applicant submitted that the decision in S157 meant a breach of the rules of procedural fairness may not be protected by a privative clause or the like. In S157 , the Court held that the privative clause in the Migration Act did not prevent judicial review of decisions which involved jurisdictional error. 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities


case_text: The High Court considered the effect s 175 and s 177 of the Act in Richard Walter . At least a majority of the Court considered that an assessment cannot be challenged on an application under s 39B of the Judiciary Act unless one of the three matters identified by Dixon J (as he then was) in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 (' Hickman ') is established. In a well-known passage dealing with the effect of a privative clause, Dixon J said (at 615): 'Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.' 42 Dawson J did not think that there was room for the Hickman principle in view of the plain terms of s 175 of the Act (at 222-223) and Toohey J seems to have taken a similar view (at 233) (see also McHugh J at 240). 45 Gleeson CJ said that in the particular statutory context of the Migration Act the privative clause did not operate to exclude judicial review for breach of the requirements of natural justice (at 493-494 [35]-[38]). His Honour did not disapprove of Hickman ; he said that as a matter of statutory construction it did not contain the relevant principles for the case before him. He referred to the decision in Richard Walter on two occasions without disapproval (at 484 [11], 488 [19]). Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that Hickman was not a principle but 'simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions' (at 501 [60]). There is no general rule as to the meaning or effect of a privative clause. Their Honours said (at 501 [60]) (footnotes omitted): 'Rather, the meaning of a privative clause must be ascertained from its terms; and if that meaning appears to conflict with the provision pursuant to which some action has been taken or some decision made, its effect will depend entirely on the outcome of its reconciliation with that other provision.' 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. I might add that the principles stated in Richard Walter have been applied by this Court on a number of occasions: see Briglia v Commissioner of Taxation (2000) 44 ATR 166; Australia and New Zealand Banking Group Limited v Commissioner of Taxation [2003] FCA 1410 ; (2003) 137 FCR 1 where Kenny J refers to the relevant authorities


case_text: The applicant pointed to the decision of the majority of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 wherein their Honours, approving the New South Wales Court of Appeal decision in Tasker v Fullwood [1978] 1 NSWLR 20 at 23G, held that (at [91]-[93]): 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. ... In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted.) 31 Specifically, the applicant drew attention to the statement in Project Blue Sky to the effect that although an act done in breach of a statutory provision is unlawful and 'Failure to comply with a directory provision "may in particular cases be punishable" ', the act may nevertheless be valid (at [100]). In this regard, reliance was placed on the decision of the Full Court in Formosa v Secretary, Department of Social Security (1998) 46 FCR 117, wherein the Court considered (at 122) that there was much force in the view that the distinction between 'mandatory' and 'directory' requirements had its meaning and utility primarily upon consideration of the consequences of a breach. The applicant also relied on Hall v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 415 ; (2000) 97 FCR 387 at [11] in which Finkelstein J held that: 'what must be determined is the consequence of a failure to comply with such an instruction. ... It is also important, no doubt, to consider the consequences of a failure to adhere strictly to the requirements of the Act'. The legislature, it was submitted, had not addressed the consequences of non-compliance with the requirement for written authorisation of s 155AC representative. The Act does not expressly provide whether such non-compliance leads to the validity or invalidity of a response otherwise authorised. 32 The applicant submitted that several factors indicate that actual but informal authorisation ought not invalidate the response given: the scope and object of the whole statute; the language of the relevant provisions; the nature of the preconditions and their place in the legislative scheme; the consequences if the response was invalid; and finally, the consequences if the response was valid. 33 As to the scope and object of the whole statute, the applicant rightly characterised the Act as 'beneficial legislation', to be interpreted liberally, and in a manner that facilitates the provision of benefits to eligible veterans. 40 The Commission argued that the legislation demanded full compliance with the requirement of written authorisation to the exclusion of all other possible alternatives. '[I]mperative language' of the kind considered in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 is used in ss 155AA(5), 155AC(2) and 155AC(4). The Explanatory Memorandum showed that the legislature had deliberately chosen the most definitive possible means of ensuring that a veteran's representative is authorised. Because Project Blue Sky (at [78]) mandates that the Court has a duty to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, any attempt to read down the requirement for an authorisation in writing would defeat the intention of s 155AC. Reliance was also placed on the statement by the High Court in Project Blue Sky (at [78]) that: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision'. 41 In this respect, the Commission submitted that it would be impossible to think that Parliament intended to create a provision that said merely, 'You must to this', but then abandon that requirement in situations where a person had been misadvised to the contrary. Parliament was not likely to have used mandatory language such as 'must' if it intended to undercut or relax that imperative in certain sets of circumstances. 42 The Commission submitted that the requirement for writing serves both the interests of applicants and the Board. The exercise of providing a written authority was intended to bring home to the applicant the significance of his/her situation, and protect him/her from the activities of unauthorised persons. The corollary of this is that a written authority also enables the Board to be confident that a representative who submits a written statement on behalf of an applicant has been duly authorised. It is clear from the Explanatory Memorandum that it is the Principal Member who must be satisfied that a representative is duly authorised because the Principal Member is placed under a statutory compulsion , rather than given a discretion, to dismiss the matter in certain circumstances. It is no answer to say that at some later stage a person might send a written authority: the statutory scheme is predicated on the basis that, after a delay of at least two years, there are 28 days in which to comply, and at that point the Principal Member comes under a mandatory duty to act. 52 The parties are correct to say that the case must be decided in the manner approved by the High Court in Project Blue Sky . As a matter of principle, what both counsel had to say about that case is correct. The relevant matters are summarised at [32] above. The difficulty is their application to the facts of this case. 53 Neither the Tribunal's (and the respondents') interpretation, nor that of the applicant, yields a wholly satisfactory result. The result of the Tribunal's interpretation is that a veteran may lose some valuable substantial rights for merely procedural failures. 54 The result of the applicant's interpretation is that a practical burden would be imposed on the Principal Member either to establish somehow that an applicant for review has not, orally or by conduct, authorised a purported representative, or to require the purported representative to obtain the applicant's written authorisation after the expiry of the 28 day period. (The Registrar in this case required that of the purported representative within the 28 day period). 55 Regrettably for the applicant, it seems to me legally necessary that the respondents' interpretation must be regarded as the less unsatisfactory one and, therefore, is the interpretation that must prevail. Notwithstanding that the Act was intended beneficially for veterans, there are three reasons for this. 56 The first is that, if the applicant's submissions are accepted, the Act's specific and detailed provisions are set at nought. Those provisions allow a two year delay; provide for formal notice from the Principal Member of the Board; require specific written authorisation of a purported representative; and then mandate dismissal of the review application after 28 days. The Principal Member would, on the applicant's approach, be required after such 28 day period at least to go through the whole notification process again and perhaps do more, in an inquisitorial fashion, to establish from the applicant personally whether a purported representative was actually authorised. The express statutory scheme would be rendered pointless.