case_text: In Bailey, the High Court did not regard the obligation to provide particulars as inconsistent with, or in any way compromising, the taxpayer's burden of proof. Rather their view was to the contrary. Gibbs J commented at 219 that: The fact that the taxpayer bears the onus of proving that the assessment is excessive makes it all the more necessary that he should be given particulars of the basis of the assessment. At 221 Mason J said that because the taxpayer has to prove that the Commissioner's assessment is excessive: ... the relevant facts in the appeal include the view of the facts on which the Commissioner has based his assessment, the manner in which he arrived at his assessment. These facts are not within the knowledge of the taxpayer; they are within the knowledge of the Commissioner. More recently, Greenwood J expressed a similar view in Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . Jacobs J acknowledged in Bailey that particulars are essentially factual rather than legal, however his Honour recognised that for a request for particulars to be appropriately directed to the matter in dispute the issues must be sufficiently defined. At 221-2, his Honour made the following comment: ... when there are no sufficiently defined issues it is not always possible to obtain particulars of facts without first ascertaining whether those facts will be relevant to questions which may be raised. In the present case it is therefore necessary for the taxpayer and the Court to know the basis of the assessments.


case_outcome: referred to

case_text: In outlining his conclusions on the application before him Sundberg J referred to Gummow J's comments in Jackson v Federal Commissioner of Taxation (1989) 20 ATR 611 at 618 that the taxpayer was entitled to know both the Commission's view and the facts on which that view was based. His Honour also said that he was in agreement with an extra-judicial observation of Beaumont J that the Commissioner's statement "must propound all the necessary ingredients of the claim for which, as a matter of legal substance, that party contends" ("Anatomy of a Federal Court Tax Case" (2000)(23)(2) UNSW Law Journal 237 at 238-9) and added, at 342: It is now well-established that the statement takes the place of pleadings so that after the exchange of statements the parties to a tax appeal know the case each has to meet. A statement that leaves the taxpayer uncertain as to how the case is put against it is embarrassing and oppressive. A statement that does not disclose the facts on which the respondent has based his assessment and the manner in which he has arrived at it, suffers from these twin vices.


case_outcome: considered

case_text: The Commissioner relies on s 14ZZO of the TAA which puts the onus on the applicant to prove the facts on which the applicant seeks to rely to show that the assessment is excessive and, unless the Court otherwise orders, limits the proceedings in this Court to the grounds stated in the taxation objection. In considering what the Commissioner must disclose in the appeal statements it is necessary to take account of the fact that the taxpayer has the burden of proof under s 14ZZO. This factor was also an issue in George v Federal Commissioner of Taxation [1952] HCA 21 ; (1952) 86 CLR 183 which was the earliest case involving the Commissioner's obligation to provide particulars with respect to assessments, albeit that the question arose in the context of earlier legislation. 11 In George, the taxpayer claimed that his taxable income was less than the amount assessed by the Commissioner. He sought orders that the Commissioner furnish particulars of the source from which it was alleged that he had derived that income. Kitto J declined to make the orders sought on the basis that it was the taxpayer and not the Commissioner who had the burden of proving that the assessment was excessive. His Honour commented, at 189, that in order to discharge the burden of proof the taxpayer, must necessarily exclude by his proof all sources of income except those which he admits. His case must be that he did not derive from any source taxable income to the amount of the assessment. 12 The Full High Court (Dixon CJ, McTiernan, Williams, Webb and Fullagar JJ) dismissed an appeal from the judgment of Kitto J. In their joint judgment, at 203, the Court pointed out that: ... even were it true that the commissioner must ... affirmatively prove by evidence that he formed a judgment of the amount of the income upon which the appellant ought to be taxed, it could not be part of his case to establish the facts upon which he acted in forming the judgment or the grounds on which he proceeded, the materials before him, or the reasoning actuating him. The need supposed of showing that he formed such a judgment could be no ground for requiring particulars of the sources of the taxable income ascribed by the assessment to the appellant.


case_text: In Rio Tinto Ltd v Federal Commissioner of Taxation (2004) 55 ATR 321 there was, as here, a dispute as to whether the statement of facts, issues and contentions was so inadequate that it should be struck out or whether it would be sufficient to supplement it with particulars. In that case the Commissioner's statement listed the issues and contentions in a table against which the Commissioner indicated his position by a simple "yes" or "no". Sundberg J held that the deficiencies in the statement could not be cured by further particulars. His Honour noted, at 331, that the ultimate decision in the appeal before him would "turn on the facts established by the applicant, and not on those perceived and stated by the [Commissioner]" and rejected the claim that the applicant was seeking to invert the onus of proof.


case_outcome: cited

case_text: His Honour did not suggest that in taking the place of pleadings, the statement should be treated in the same way as pleadings. The difference between pleadings and a statement of facts, issues and contentions or an appeal statement was recognised by Lindgren J in WR Carpenter Holdings Pty Ltd v Commissioner of Taxation (2006) 234 ALR 451 where his Honour stated unequivocally, at 459, that a statement of facts, issues and contentions is not a pleading even within the extended definition of "pleading" in O 1 r 4 of the Federal Court Rules . 19 Ultimately, however, what is clear from all of the authorities is that the issue is one of substance; the taxpayer, and the court, must be given a clear and succinct statement of the Commissioner's position without imposing any element of a burden of proof on the Commissioner. In substituting such a statement for pleadings the legislature has provided for a very practical approach to the unusual situation where the taxpayer bears the burden of proving that the Commissioner's assessment is excessive. In my view, such a statement should not be overly scrutinised in an attempt to find errors or inadequacies. The question is: does the statement give the taxpayer a practical understanding of the Commissioner's position? 20 The applicant's complaints about the inadequacies it perceived in the respondent's appeal statements are set out in detail in a letter dated 3 August 2007 from its solicitor to that of the respondent. While expressly not conceding that those deficiencies could be cured by further particulars, a request for further and better particulars was enclosed with the letter. In its response dated 17 August 2007, the respondent's solicitor declined to amend the statements but said that its client was prepared to give further particulars. Despite this, no further particulars had been given by the time of the hearing of the applicant's motions.


case_text: Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 the High Court considered an application by an examinee to restrict questions that were asked of him to matters that were not the subject of pending criminal proceedings against him. The Deputy Registrar in the New South Wales Supreme Court declined to so restrict the examination. Review of the Deputy Registrar's decision was sought whereupon McLelland J, as his Honour then was, dismissed the examinee's application for an order restricting the examination. That decision was reversed on appeal to the Court of Appeal but restored following an appeal to the High Court. Mason CJ said at 497-498: '... In light of the purpose of the section, great weight must be given to the views of the liquidator when the court considers whether to order an examination ... The same approach must be taken by the court when it makes orders or gives directions in relation to an examination in progress. ... The very purpose of the section is to create a system of discovery, which may cause defences to be disclosed, for the purpose of bringing charges. The section gives to the liquidator rights not possessed by an ordinary litigant ... . In these circumstances it must be accepted that the section applies equally to proceedings which the liquidator "might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought" ... To adopt the language of Kitto J in Mortimer v Brown [(1970) [1970] HCA 4 ; 122 CLR 493 at 496] , to hold otherwise "would render the provision relatively valueless in the very cases which call most loudly for investigation".


case_text: CJ cited with approval the judgment of Street J, as his Honour then was, in Re Hugh J Roberts Pty Ltd (in liq) and the Companies Act (1970) 91 WN (NSW) 537 ('Re Hugh J Roberts Pty Ltd'). In that case his Honour said at 541-542: 'A liquidator needs information concerning his company just as much in connection with current or contemplated litigation as in connection with other aspects of its affairs. .... In my judgment it is immaterial in basic substance whether the private examination is sought to be used by a liquidator to gather information in connection with proceedings he believes he might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought. There is no presently relevant distinction in substance between gathering information referable to commencing proceedings and gathering information referable to continuing proceedings. There may be more risk of or opportunity for the examination being vexatious or oppressive after proceedings have been commenced .... Also an abuse of process may be more readily exposed once proceedings are already on foot. But this is surely not to the point, as vexation or oppression will not be tolerated no matter when the examination is held. A liquidator need not be diffident in using a private examination for its ordinary and legitimate purpose in the gathering of information. But he must not abuse this process. For instance an attempt, where litigation is either contemplated or commenced, to summon the prospective or existing defendant's probable witnesses and examine them simply for the purpose of destroying their credit would exceed the legitimate use of the process. Beyond stating this extreme instance, I consider it unsafe to generalize very often the gathering of information quite properly involves testing the reliability or credit of the examinee from whom the information is being obtained. It is not without significance that the Master or Deputy Master in Equity presides over the examination. The type of examination which could be vexatious, oppressive or harassing will not be difficult to recognize. If counsel is appearing for the party being examined, he will no doubt take objection where necessary. And if the examinee is unrepresented, one can be confident that the Master himself would intervene were a situation to develop where the examination departed into a field which is abusive of the process of the court. I reiterate that the mere fact that the subject matter of the examination is directly concerned with issues currently being litigated or matters incidental to such issues will not of itself render the proceedings abusive.' In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34 at [27]-[29] French CJ, Gummow, Hayne and Crennan JJ said in respect of the prevention of abuses of process: '[27] An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest : The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute "abuse of process". Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included: (a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression. [28] The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton the majority adopted the observation in Hunter that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". [29] In Campbells , Gummow, Hayne and Crennan JJ (with whom Gleeson CJ agreed in this respect) declined to formulate an overarching rule of public policy that would, in effect, bar the prosecution of an action involving an agreement to provide money to a party to institute or prosecute the litigation in return for a share of the proceeds of the litigation. Nor would they accept that there should be a rule which would bar the prosecution of some actions according to whether the agreement met some standards relating to the degree of control or the amount of the reward the funder might receive under the agreement. It was not shown that apprehensions that the funder might improperly interfere with the conduct of the proceedings could not sufficiently be addressed by "existing doctrines of abuse of process and other procedural and substantive elements of the court's processes".' (footnotes omitted) In Wily Barrett J at [42] opined that it was a clearly impermissible purpose for a liquidator to conduct a dress rehearsal for cross-examination or to seek to assemble material in order to attack a potential witness's credit. No such impermissible purpose is apparent in the circumstances of this case. Furthermore, one must not overlook Street J's observation in Re Hugh J Roberts Pty Ltd that testing the reliability of an examinee from who information is being obtained can be a legitimate use of the examination power. Background facts


case_text: the coercive powers of s 596B were to be invoked for a purpose foreign to the purposes for which those powers were conferred, there would be an abuse of process (see per Hayne J, then of the Supreme Court of Victoria, in New Zealand Steel (Aust) Pty Ltd v Burton (1994) 13 ACSR 610 at 616).


case_text: such as s 596B have a long history. In practice, in many cases the applicant for an examination order is the liquidator of a company which is being wound up. Liquidators often experience difficulty in obtaining necessary information concerning the affairs of the company, and they may not be able to depend upon former officers of the company to assist them in that regard. Indeed, they may wish to assert rights of the company against such former officers (see per Gleeson CJ, then of the Supreme Court of New South Wales, in Hong Kong Bank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 517).


case_text: scope and operation of s 596B of the Act is such that it will inevitably intrude on private and commercial interests of third parties and require the disclosure of information which would, absent such a provision, be confidential. Despite those consequences, the provision must be given full effect, in accordance with its terms, reflecting a choice made by the Parliament as to the necessary balance between such private and commercial interests and the public interest in the orderly administration of companies under the control of external managers (per Basten JA, Beazley JA agreeing, in Meteyard v Love [2005] NSWCA 444 ; (2005) 65 NSWLR 36 ('Meteyard') at [136]). The statutory definition of 'examinable affairs' is so wide that it would be unwise to assume that matters of future intention are necessarily beyond its scope (per Santow JA in Meteyard at [10]). It would be equally unwise to assume that information already known to a liquidator should be excluded from questioning in respect of examinable affairs (per Santow JA in Meteyard at [11] and Basten JA at [139], Beazley JA agreeing).


case_title: O'Brien v Wily (2009) 74 ACSR 145

case_text: examination directed at testing a liquidator's preliminary view that claims in current litigation have good prospects of success in not an objectionable purpose (per Barrett J in O'Brien v Wily (2009) 74 ACSR 145 ('Wily') at [37]-[38]). Where the predominant purpose of a liquidator in conducting examinations is to put himself into a position from which he can make a final decision whether or not to pursue litigation is permissible (see per Barrett J in Wily at [45]). The approach taken by Courts to prevent abuses of process in inter-partes litigation may not necessarily apply in all circumstances to summons issued pursuant to the investigative powers conferred upon, amongst others, a liquidator, as an eligible applicant in relation to a corporation's examinable affairs. However, what has been said in relation to abuse of process in the context of inter-partes litigation will, of necessity, be relevant to determining questions of abuse of process in respect of the issue and use of examination summons. In Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34 at [27]-[29] French CJ, Gummow, Hayne and Crennan JJ said in respect of the prevention of abuses of process: '[27] An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest : The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute "abuse of process". Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included: (a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression. [28] The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton the majority adopted the observation in Hunter that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". [29] In Campbells , Gummow, Hayne and Crennan JJ (with whom Gleeson CJ agreed in this respect) declined to formulate an overarching rule of public policy that would, in effect, bar the prosecution of an action involving an agreement to provide money to a party to institute or prosecute the litigation in return for a share of the proceeds of the litigation. Nor would they accept that there should be a rule which would bar the prosecution of some actions according to whether the agreement met some standards relating to the degree of control or the amount of the reward the funder might receive under the agreement. It was not shown that apprehensions that the funder might improperly interfere with the conduct of the proceedings could not sufficiently be addressed by "existing doctrines of abuse of process and other procedural and substantive elements of the court's processes".' (footnotes omitted) In Wily Barrett J at [42] opined that it was a clearly impermissible purpose for a liquidator to conduct a dress rehearsal for cross-examination or to seek to assemble material in order to attack a potential witness's credit. No such impermissible purpose is apparent in the circumstances of this case. Furthermore, one must not overlook Street J's observation in Re Hugh J Roberts Pty Ltd that testing the reliability of an examinee from who information is being obtained can be a legitimate use of the examination power. Background facts


case_text: Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 260 ALR 34 at [27]-[29] French CJ, Gummow, Hayne and Crennan JJ said in respect of the prevention of abuses of process: '[27] An early statement of the power of any court to prevent abuse of its processes is found in an 1841 case, Cocker v Tempest : The power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. That statement foreshadowed the contemporary approach in the United Kingdom and Australia which takes no narrow view of what can constitute "abuse of process". Nevertheless, certain categories of conduct attracting the intervention of the courts emerged in the 19th and 20th centuries and included: (a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression. [28] The term "abuse of process", as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this court that the categories of abuse of process are not closed. In Walton the majority adopted the observation in Hunter that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be "manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people". This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment". [29] In Campbells , Gummow, Hayne and Crennan JJ (with whom Gleeson CJ agreed in this respect) declined to formulate an overarching rule of public policy that would, in effect, bar the prosecution of an action involving an agreement to provide money to a party to institute or prosecute the litigation in return for a share of the proceeds of the litigation. Nor would they accept that there should be a rule which would bar the prosecution of some actions according to whether the agreement met some standards relating to the degree of control or the amount of the reward the funder might receive under the agreement. It was not shown that apprehensions that the funder might improperly interfere with the conduct of the proceedings could not sufficiently be addressed by "existing doctrines of abuse of process and other procedural and substantive elements of the court's processes".' (footnotes omitted) In Wily Barrett J at [42] opined that it was a clearly impermissible purpose for a liquidator to conduct a dress rehearsal for cross-examination or to seek to assemble material in order to attack a potential witness's credit. No such impermissible purpose is apparent in the circumstances of this case. Furthermore, one must not overlook Street J's observation in Re Hugh J Roberts Pty Ltd that testing the reliability of an examinee from who information is being obtained can be a legitimate use of the examination power. Background facts


case_text: R v Joske; ex parte Shop Distributive and Allied Employees' Association [1976] HCA 48 ; (1976) 135 CLR 194 , at 212-213, Mason and Murphy JJ discussed s 141 of the Act 1904, which is a forerunner of s 164, stating: The judgments of this Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50 ; [(1945) 70 CLR 141] make it perfectly clear that sub-s (1) of s 141 is not confined to the making of orders directing the performance or observance of a particular rule or particular rules of the organization, as the prosecutors would have it, and that it extends, as its words explicitly state, to the giving of directions for the performance or observance of any of the rules of an organization, that is, for the doing of acts which will conduce to the performance or observance of such rules. ... The power to make interim orders ... is likewise not limited to the giving of directions to perform or observe rules. The terms of the grant to the Court of authority 'to make such orders as it thinks fit in relation to the matters to which the proceedings relate' indicate that the Court has a wide discretion as to the form of order to be made. The exercise of this discretion cannot be restricted to the making of orders for the performance or observance of the rules, or for that matter to directions as to matters which will conduce to performance or observance of the rules. The history ... suggests that in its present form it is designed to enable the Court to make any interlocutory order which will safeguard the position and interests of parties pending a final determination, provided that it bears a relationship 'to the matters to which the proceedings relate'. ... The only relevant limitation on the Court's power to pronounce an interim order is to be found in the concluding words of the sub-section. Yet they are not susceptible of the construction which the prosecutors seek to place upon them. It is impossible to read 'the matters to which the proceedings relate' as signifying no more than the relief claimed by the applicant in the proceedings, or, for that matter, than the issues which are raised for decision in the proceedings. The words, we think, signify the controversy between the parties to which the proceedings relate, whether or not it be crystallized as an issue in these proceedings or in the form of the relief sought. For reasons appearing below, before turning from the Schedule, it is useful to note s 159, which relevantly provides that: (1) An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged in the Industrial Registry and a Registrar has certified that, in his or her opinion, the alteration: (a) complies with, and is not contrary to, this Schedule, the Workplace Relations Act , awards and collective agreements; and (b) is not otherwise contrary to law; and (c) has been made under the rules of the organisation. ... (3) An alteration of rules that has been certified under subsection (1) takes effect on the day of certification. ...


case_text: parties did not dispute the nature of the test to be applied on an application, under s 164(4), for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. Recently, in Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. I appreciate that the grant of the interim orders sought was tantamount to the grant of final relief. In Conquo v Jackson [2009] FCA 45 , Sundberg J considered whether or not it was necessary to establish a stronger than usual case in such circumstances and held that it was not. His Honour said, at [30]-[33]: On the balance of convenience the respondent contended that because what is sought by the applicant is in effect final relief, the applicant had to establish a stronger than usual case. In Bradto Pty Ltd v State of Victoria [2006] VSCA 89 ; (2006) 15 VR 65 the Court of Appeal rejected a submission that because part of an interlocutory injunction required positive action, it was mandatory and not prohibitory, so that it should not have been granted unless there was a high degree of assurance that at trial it would appear that the injunction was rightly granted. Maxwell P and Charles JA said at [33]: In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover , the grant of a mandatory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite 'high degree of assurance'. The correct approach, according to their Honours, whether the relief sought is prohibitory or mandatory, is to take whatever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial: at [35]. The Court of Appeal also rejected a contention that where an interlocutory injunction is tantamount to awarding final relief, it should be granted only if the court feels a high degree of assurance that at trial it will appear that the interlocutory injunction was rightly granted. The Court said at [39]: Once again, we see no necessity for the recognition of a special 'rule' for this different subcategory of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost certainly be a factor in the evaluation of the balance of convenience. In view of the observations of Gray J in McGee v Sanders (No 2) , recorded at [15], the two 'special' rules rejected by the Court of Appeal in Bradto are even less appropriate in relation to interim orders under s 164 than they are in the conventional interlocutory injunction context. It is to be remembered that an order under s 164 is defined so as to include 'directions for the performance' of any rules of an organisation by a person who is under an obligation to perform them. This will often be a mandatory order that results in the giving of final relief. An interim order under s 164(4) can plainly be an order of the same type as that granted at trial under subs (1). Accordingly I adopt the approach in Bradto in the passages quoted at [30] and [31] of considering the likelihood of the applicant succeeding at trial rather than concentrating on the fact that the second order sought is of a mandatory character and may itself amount to final relief.


case_title: Conquo v Jackson [2009] FCA 45

case_text: parties did not dispute the nature of the test to be applied on an application, under s 164(4), for interim orders. In McGee v Sanders (No 2) [1991] FCA 554 ; (1991) 32 FCR 397 , at 402-403, Gray J discussed the test to be applied, saying: In opening the application for interim orders, counsel for the applicants indicated that she would endeavour to show that there existed a serious issue to be tried as to the applicants' entitlement to relief, and that the balance of convenience favoured the applicants. I am by no means convinced that these tests, which have been applied by courts in dealing with applications for interlocutory injunctions, are appropriate to the specific statutory power under s 209(4) of the Act. It should be noted that the power to make interim orders is given in broad terms. The court may make "such interim orders as it considers appropriate". Parliament has not chosen to use the word "injunction". The practice in granting or refusing interim orders differs from the practice in relation to interlocutory injunctions in at least one important respect. It is rare for an applicant for interim orders to be called upon to give an undertaking that he or she will pay damages in the event of failure. In my view, it is the duty of the court to do justice as best it can when confronted by an application for interim orders. Sometimes, the evidence proffered by an applicant will be uncontested and will demonstrate a strong case. In such circumstances, a court will naturally be more ready to make orders on an interim basis. Recently, in Conquo v Jackson [2009] FCA 45 , at [16], Sundberg J approached an application for interim orders, having regard to this passage and also the test for a conventional interlocutory injunction. Before turning to "balance of convenience" type considerations, I note that, in the circumstances, I was satisfied that the applicant had taken all reasonable steps, within the meaning of s 164(3) , to try to have the matter the subject of the application resolved. In Conquo v Jackson [2009] FCA 45 , at [41]-[42], Sundberg J stated: In reliance on s 164(3) , the respondent said there was no evidence that the applicant has taken any steps to have the validity of the 7 January resolutions resolved internally. He drew attention to Rule 21(l) which confers power on the National Council 'to interpret these Rules'. I would not refuse to deal with the present application merely because the applicant has not sought to have the validity of the resolutions resolved by an interpretation of the Rules by the National Council. Section 164(3) speaks of "all reasonable steps". In Anderson v Taylor (1990) 22 FCR 326 at 335 speaking of what was 'reasonable' in a precursor of s 164(3) , Gray J said: An applicant is not to be denied relief simply because there was open to him or her some steps under the rules which might conceivably have led to a resolution of the issue which he or she seeks to raise before the Court. An applicant is not required by s 209(3) to engage in conduct the result of which is purely speculative. His Honour went on to say that a suggestion that the applicant there should have sought to persuade the national executive to reverse its earlier decisions was not reasonable because 'the applicant would have had every right to regard himself as attempting to appeal from Caesar to Caesar if he had asked the national executive to reconsider'. In the present case the National Council is supporting the respondent. Mr Langmead, who appeared for the national body, intervened with leave in support of the respondent. It would not in my view be reasonable for the applicant to expect the National Council to interpret the rules in a way that would defeat the side with which it is aligned. In any event, whatever the Council's ruling on the meaning of the rules, the matter would return to the Court. An interpretation of the rules made by the Council cannot exclude the jurisdiction of the Court. To require the applicant to approach the Council would, in my view, simply consume time to no avail. I adopt his Honour's analysis of the nature of the "reasonable steps" requirement in s 164(3). In the circumstances, to require the applicant to have communicated with Ms Jackson again before making this application would have been a somewhat pointless exercise. I appreciate that the grant of the interim orders sought was tantamount to the grant of final relief. In Conquo v Jackson [2009] FCA 45 , Sundberg J considered whether or not it was necessary to establish a stronger than usual case in such circumstances and held that it was not. His Honour said, at [30]-[33]: On the balance of convenience the respondent contended that because what is sought by the applicant is in effect final relief, the applicant had to establish a stronger than usual case. In Bradto Pty Ltd v State of Victoria [2006] VSCA 89 ; (2006) 15 VR 65 the Court of Appeal rejected a submission that because part of an interlocutory injunction required positive action, it was mandatory and not prohibitory, so that it should not have been granted unless there was a high degree of assurance that at trial it would appear that the injunction was rightly granted. Maxwell P and Charles JA said at [33]: In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover , the grant of a mandatory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite 'high degree of assurance'. The correct approach, according to their Honours, whether the relief sought is prohibitory or mandatory, is to take whatever course appears to carry the lower risk of injustice if it should turn out to have been 'wrong', in the sense of granting an injunction to a party who fails to establish his right at trial, or in failing to grant an injunction to a party who succeeds at trial: at [35]. The Court of Appeal also rejected a contention that where an interlocutory injunction is tantamount to awarding final relief, it should be granted only if the court feels a high degree of assurance that at trial it will appear that the interlocutory injunction was rightly granted. The Court said at [39]: Once again, we see no necessity for the recognition of a special 'rule' for this different subcategory of interlocutory injunctions. On the contrary, we think that it must be relevant on every application for an interlocutory injunction to consider the likelihood of the plaintiff succeeding at trial. Not only is such consideration a necessary part of deciding whether there is a serious question to be tried, but the plaintiff's prospects of success will almost certainly be a factor in the evaluation of the balance of convenience. In view of the observations of Gray J in McGee v Sanders (No 2) , recorded at [15], the two 'special' rules rejected by the Court of Appeal in Bradto are even less appropriate in relation to interim orders under s 164 than they are in the conventional interlocutory injunction context. It is to be remembered that an order under s 164 is defined so as to include 'directions for the performance' of any rules of an organisation by a person who is under an obligation to perform them. This will often be a mandatory order that results in the giving of final relief. An interim order under s 164(4) can plainly be an order of the same type as that granted at trial under subs (1). Accordingly I adopt the approach in Bradto in the passages quoted at [30] and [31] of considering the likelihood of the applicant succeeding at trial rather than concentrating on the fact that the second order sought is of a mandatory character and may itself amount to final relief.


case_outcome: followed

case_title: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473

case_text: Counsel relied on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 and argued that although the Tribunal might have been entitled to examine the appellant's living circumstances in China and reach the conclusion that no past persecution had in fact occurred, the absence of past persecution did not mean that there was not a real chance of persecution in the future. He argued that the Tribunal paid little to no attention to the risks of the appellant suffering persecution upon her return to China. 25 The Federal Magistrate agreed that the Tribunal had dismissed the question of future persecution quite summarily. However, His Honour pointed out that no evidence had been produced to indicate that the appellant would behave any differently in the future to how she had in the past, and concluded: It would in those circumstances be an otiose exercise, having reached conclusions about past activities not having led to persecution, for the Tribunal to expressly posit such activities happening in the future and then make findings based on a prognostication of future events when it was given no basis for considering that future activities would be any different or the response of the authorities any more persecutory. In these circumstances, the Tribunal can only find, as here, that no chance of serious harm on account of such activities will occur in the reasonably foreseeable future. 26 His Honour therefore dismissed the appellant's application for judicial review. 27 The appellant's notice of appeal raises several grounds of appeal. The first three challenge the Federal Magistrate's conclusions on the Tribunal's findings in relation to the issue of future persecution, asserting that His Honour erred in holding that: a) The Tribunal's failure to assess a risk of future persecution did not amount to jurisdictional error, b) It was not required to examine the issue, despite the appellant not giving evidence as to any difference in future behaviour; and c) The Tribunal was not required to make findings relating to this question and that their absence did not amount to the Tribunal asking the wrong question by focusing on any persecution the appellant may have suffered in the past, rather than the future. 28 The notice of appeal also challenges the Federal Magistrate's conclusion in dismissing the claim of jurisdictional error in that the Tribunal's findings regarding the appellant's claimed fear of persecution for reasons of religion, and in particular its failure to consider whether restrictions on public worship amounted to persecution. 29 Finally, it is asserted in the notice of appeal that the Federal Magistrate erred in concluding that the Tribunal had properly considered the appellant's claim for fear of persecution on the basis of a political opinion imputed to her by reason of her son's political activities in Australia, and had properly taken into account the fact of the grant of a protection visa to the appellant's son in its consideration. 30 During argument the appellant's counsel applied for leave to amend a further ground of appeal directed to the passage in the Tribunal's reasons referred to in [8] of these reasons. Counsel asked for time to consider the precise wording of the amendment. I directed the appellant to formulate the amendment within 7 days and each party to provide me with written submissions in relation to the application for leave to amend and the substance of the amendment. The parties complied. 31 Whilst the first respondent argued that the ground should be dismissed, no separate argument was put that leave should not be given. The ground of appeal for which leave was sought is: 4. The learned Federal Magistrate erred in not holding that the Tribunal had: 4.1 upon finding that "the repression of the Uighers stems deeper than mere disadvantage, as they are being deliberately persecuted for practising and preserving their culture and religion"; 4.2 committed jurisdictional error by not considering whether, in light of that finding, the Appellant, as an Uigher person, would therefore also be persecuted if she were to return to China. 32 It would be appropriate in the circumstances of this appeal to grant leave to amend in the absence of any objection by the first respondent and because the ground is related to the first ground, and because in my opinion the ground should be upheld. 45 The respondent further submitted that no error of the type referred to in Appellant S395/2002 216 CLR 473 arose because the Tribunal focused on the appellant's particular circumstances. The first respondent argued that the Federal Magistrate correctly held that the Tribunal was properly engaged in the task of identifying whether a well-founded fear of "serious harm" had been established, rather than attempting to apply, it submitted, an inappropriate test as to what constitutes religious persecution. 46 The respondent submitted that the Federal Magistrate was correct in dealing with the Tribunal's decision regarding the appellant's son and that no error was apparent in His Honour's decision and ground 3 should be dismissed. 47 The first respondent contended that the appellant's late-raised fourth ground of appeal should be dismissed. The first respondent submitted that, properly read, the passage of the Tribunal's reasons did not mean that the Tribunal accepted as fact that all Uighers are being deliberately persecuted. Rather, it submitted, the Tribunal was reciting an assertion of information provided by Amnesty International. It therefore submitted that no jurisdictional error arose from this passage of the Tribunal's decision. 48 There are four reasons why, in my opinion, this appeal should be allowed and the orders made by the Federal Magistrate set aside, and orders made for the issue of the constitutional writs. 49 First, in my opinion, contrary to the finding of the Federal Magistrate, the Tribunal did not address the appropriate question in considering the appellant's claims. The question that the Tribunal needed to consider was whether the appellant had a well-founded fear of persecution. This required the Tribunal to consider whether if the appellant were to return to her country of origin, in this case China, there would be a real chance she would be persecuted for a Convention reason. 51 However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499. 52 In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act. 53 The second reason why, in my opinion, the Tribunal fell into error is that the Tribunal did not address one integer of the appellant's claim. She claimed that, by reason of her husband's conduct, her son-in-law's conduct and, more relevantly, her son's conduct, their political opinions would be imputed to her which would give rise to persecutory conduct on the part of the authorities. The Tribunal did not consider whether her son's conduct and the granting of a protection visa to him as a result of the decision of the Tribunal would be likely to give rise to persecution for their political opinions. The Tribunal misunderstood the relevance of the appellant's son being granted a protection visa. 54 Thirdly, in my opinion, the Tribunal fell into error by failing to deal properly with the appellant's claims of feared persecution because of her religious beliefs. There was significant evidence put before the Tribunal as to the manner in which the appellant was restricted by the Chinese State in the practice of her religion, and also as to the manner in which she wished to practice her religion, namely in public with other members of the Muslim community. Despite this, the Tribunal held that "[t]he applicant has not claimed ... that she was effectively prevented from practising her religion in private. She made no claim that she suffered persecution or came to the attention of the authorities on the basis of her religion."


case_text: In relation to ground 1 of the notice of appeal, the respondent submitted that the Federal Magistrate was correct in holding that the Tribunal acted properly in finding that despite numerous members of her family being imputed with separatist political beliefs and actually being persecuted by Chinese authorities, no harm had befallen the appellant in the past as a consequence. Furthermore, it submitted, the Tribunal was entitled to take this into account in determining if the appellant had a "well-founded fear" of future persecution and that the Federal Magistrate was right to rely upon Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559. The Minister submitted that the question as to whether the harm (or potential harm) feared by the appellant was capable of constituting "persecution" for Convention purposes was a matter for the Tribunal, and that the Tribunal correctly assessed the question without falling into jurisdictional error. 44 In relation to ground 2 of the appeal, dealing with the appellant's religious beliefs, the respondent submitted that the Federal Magistrate dealt with this issue in detail and properly assessed this aspect of the appellant's claim on the basis that the appellant was an adherent of Islam and if returned to China she may continue to practise her religion. 50 It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo [1997] HCA 22 ; 191 CLR 559.


case_title: Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548

case_text: The Federal Magistrate summarised the appellant's first ground as a complaint that the Tribunal failed to take into account the restrictions on the appellant's ability to practise her religion by way of public manifestation of her beliefs. The appellant argued, citing Wang v The Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 , that two elements of the concept of religion as expressed in the Convention must be considered; the manifestation of personal faith and the practice of faith in a congregation or like-minded community. She contended that the failure to consider her claim that she was restricted in her public expression of faith constituted a jurisdictional error. 17 His Honour held that it was literally incorrect for the Tribunal to find that "she has made no claim that she suffered persecution ... on the basis of her religion" because evidence provided by the appellant and her agent clearly demonstrated she was making such a claim. However, it also determined that the appellant's evidence and submissions did not amount to an "especially focused reference to the denial of public worship". His Honour found (at[14]): Moreover, the case the applicant put on religious persecution was one of general repression including restrictions on dress, forced performance of tasks inconsistent with religious tenets, disadvantage in employment and invigilation of private prayer. It did not include a great deal of information about specific instances of persecution relating to the applicant personally. That does not mean that it did not have to be given proper consideration but it does have an impact on our (sic) evaluation of the way the Tribunal went about its task. The one very specific occasion referred to in the statutory declaration is identified in the Tribunal's findings (the visit by an official to her house during prayer). The reference to the fact that her employment has not been lost and as to the applicant not being the focus of specific attention by the authorities are unsurprising observations in a decision of this kind. It is a matter of the Tribunal putting the allegations in some perspective rather than an indication that the Tribunal was suggesting that such allegations were a necessary part of an allegation of religious persecution. 18 His Honour held that the appellant's claims did not identify specific instances of personal persecution and as such the Tribunal was principally engaged in evaluating the meaning of "serious harm" under s 91R of the Migration Act 1958 (Cth) (the Act) rather than trying to apply an "inappropriate test" as to what constitutes religious persecution. 19 His Honour held that while the Tribunal dealt somewhat summarily with matters of the specific and personal circumstances of the appellant, it nonetheless considered them and therefore did not fall into jurisdictional error in dealing with persecution on the basis of the appellant's religion. 20 In relation to the second ground, the Federal Magistrate noted first, that the Tribunal had little difficulty in accepting the appellant's account of her husband's activities and of the difficulties they experienced from the Chinese authorities. Secondly, his Honour noted the activities of the applicant's son, who had been asked to spy for the Chinese in the East Turkestan community in Australia, had been actively involved in the community's activities within Australia, and had recently been successful in his review from the Minister's refusal to grant him a protection visa. His Honour was prepared to draw the inference that the Tribunal had access to the file held by the Tribunal differently constituted in relation to the appellant's son. 21 It was accepted by counsel before the Federal Magistrate that the only relevance this information had was with respect to the appellant's claims of how a well-founded fear of persecution on account of political opinion could be imputed to her on account of her association with her husband and her son, and inferences that might be drawn from that by the Chinese authorities. 22 However, the Federal Magistrate determined that the Tribunal had given proper consideration to this material and thus had not fallen into jurisdictional error, stating (at [32]): ... I think that a fair reading of the Tribunal's decision indicates that such a consideration was properly evaluated. The Tribunal knew of, and noted, the experiences of both the applicant's husband and son (and son-in-law, less significantly). The husband had, after all, died in detention. What was significant for the Tribunal, and, I may say, understandably significant, was that, notwithstanding these issues, the applicant had not suffered convention-related harm herself. The Tribunal found (and it was not disputed) that she was not a political activist herself (CB 332). Her claim for refugee status on account of political activity (bound up with Uigher ethnicity) was always to be evaluated on family association criteria. Apart from the fact of her ethnicity, it did not otherwise arise on the facts of this case. I am satisfied the Tribunal did give proper consideration to the political opinion that might be imputed from her son's East-Turkistan activities, just as it did to that which might have been imputed from her deceased husband's activities. 23 The Federal Magistrate turned his mind to the third ground of appeal: that the Tribunal had applied an incorrect test in asking whether the appellant had suffered significant past persecution, and had not properly assessed the risk of future persecution. 55 I agree with the appellant's submission that that finding fails to recognise the appellant's case that she feared persecution from the Chinese authorities by reason of her intention to practice her religion in public. In Wang [2000] FCA 1599 ; 105 FCR 548 , Merkel J said at 565: When regard is had to those matters it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community. 56 For the Tribunal to simply state that the appellant was not prevented from practising her religion in private in my opinion was an error. The Tribunal failed to properly address the appellant's claimed restrictions on her ability to practice her religion openly with others, and whether those restrictions amounted to persecution under the Convention. 57 Fourthly, the Tribunal's conclusion contradicted its own finding. The appellant is a Uigher from the Xinjiang province. At [8] of these reasons I have quoted what, in my opinion, was an unambiguous finding of the Tribunal that the Uigher population is being deliberately persecuted for practising and preserving its culture and religion. As I have said, the first respondent contended that the Tribunal did not make such a finding but was merely recounting the account given by Amnesty International. I reject that contention.


case_outcome: applied

case_text: Federal Court is empowered to make interlocutory orders by s 23 Federal Court of Australia Act 1976 (Cth). The principles which govern the exercise of that power were set out recently by Stone J in Hexal Australia Pty Limited v Roche Therapeutics Inc [2005] FCA 1218 at [17] , namely: 1. That there is a serious question to be tried or a prima facie case such that if the evidence remains the same there is a probability that at a final hearing it will be entitled to relief. 2. That it will suffer irreparable harm for which damages will not be an adequate compensation, unless an injunction is granted. 3. That the balance of convenience favours the granting of an injunction. (See also Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675 per Sundberg J at [9]; Castlemaine Tooheys v State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 per Mason ACJ at [153]; and American Cynamid v Ethicon Limited [1975] UKHL 1 ; (1975) AC 396 per Lord Diplock at [406]-[407].) 1. Serious Question to be Tried


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


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


case_text: similar case concerning backpack style containers used for spot-spraying pests and weeds was heard before Finkelstein J in Outdoor Power Products Pty Ltd v Silvan Australia Pty Ltd [2005] FCA 1696. In that case, Finkelstein J considered an application for an interlocutory injunction to restrain an infringement of a trade mark over the 'Solo Sprayer'. His injunction considered the elements of the claimed passing off action and found it to be made out sufficiently for the purposes of an interlocutory application. His Honour held that in a case where it was clear that the offending product was interfering with the applicant's goodwill, damages would not be an adequate remedy. As I indicated earlier, I have been provided in Court this morning with the football kicking tee as sold by the first respondent which I have referred to as the infringing kicking tee, and a 'Sharp Shooter' football kicking tee. I am in no doubt that the general appearance of each is extremely similar. I agree with Finkelstein J that in circumstances where it is clear that an infringement of the Registered Design by the respondents is being used to interfere with the goodwill of the applicants and being used to erode the applicants' market share in breach of the applicants' monopoly rights pursuant to the Registered Design, damages would not be an adequate remedy. 3. Balance of convenience As I have already indicated, there is evidence that: o the respondents are selling infringing kicking tees which may infringe the applicants' registered design o there is a history of communication between these parties, including it appears undertakings by the respondents not to continue to sell kicking tees which infringe the applicants' Registered Design o the infringing kicking tees which the respondents are selling bear a very strong similarity to the applicants' kicking tees. Again, it is unfortunate that the respondents did not appear today. However, the factors I have listed above, in particular the history of this matter as presented to me by the applicants, persuade me that it would be appropriate to grant the applicants interlocutory relief as they seek. Further, as evidenced by the email and letter exhibited to the affidavit of Mr Philp, the respondents had already indicated that they would not be selling kicking tees which infringe the applicants' Registered Design. An order restraining them from selling the infringing kicking tees appears to be compatible with undertakings it seems they made in 2005.


case_title: Pharmacia Italia SPA v Pfizer (Perth) Pty Ltd v Interpharma Pty Ltd (2005) FCA 1675


case_text: the Court has not had the benefit of submissions from the respondents on these points. However, the visual similarity in the tees is clear. Gummow J in Wanem Pty Ltd v John Tekiela (1990) 19 IPR 435 at 15 said 'the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind'. Prima facie , there is a case that the tees sold by the first respondent infringe the Registered Design of the applicants under the Designs Act 1906 (Cth). Further, there is affidavit evidence from the applicants that at least some infringing kicking tees are being sold in stores operated by the first respondents. Finally, there is evidence before the Court, including correspondence from the respondents, which supports the third contention of the applicants in relation to the conduct of the respondents. In my view, these issues indicate that there is a serious question to be tried. 2. Damages insufficient In their written submissions and in oral submissions this morning the applicants submitted that whilst an account of profits or damages in respect of the infringements to date are sought in the eventual trial, long term damage to the market for kicking tees to which their Registered Design has been legitimately applied is of most concern.


case_text: In Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68, the Full Court of this Court, in particular Smithers J and Keely J, recognised that the discretion was a broad one, to be exercised judicially depending on the existence of sufficient cause. See in particular Molnar at 74-75 per Smithers J and 80 per Keely J. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 , French J set out the guiding approach, which has been followed and applied by other judges of the Court: see Australian Communications Authority v Viper Communications Pty Ltd [2000] FCA 982 ; Oakley Inc v Franchise China Pty Ltd [2002] FCA 404. In Termi-Mesh French J said the following at [10]-[14]: Order 9 rule 1 of the Federal Court Rules provides, in the relevant parts: " 1(1) A respondent may enter an appearance and may defend a proceeding by a solicitor or in person. . . . (3) Notwithstanding sub-rule (1) and subject to any Act, a corporation may not without the leave of the Court or a Judge enter an appearance or defend any proceeding except by a solicitor." It should also be noted that O 4 r 14(2) provides that: "Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor." The burden of authority in the Federal Court relates to the latter rule. Equivalent rules in other jurisdictions and particularly England and other Australian States set up an "exceptional circumstances" or like test before leave can be granted Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591; Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104. In the latter case, Samuels JA in the New South Wales Court of Appeal, saw the court's discretion to dispense with its rules about representation as one to be exercised "only with the most meticulous care" and in exceptional circumstances. The position under the Federal Court Rules however is not as restrictive as that under the English Rules and various of the State Supreme Court Rules . In this respect I refer to what I said in Simto Resources Limited v Normandy Capital Limited (1993) 11 ACLC 856. Although the rationale for the restriction is basically the same in all jurisdictions, the power of the Federal Court to grant leave to a corporation to carry on a proceeding, otherwise than by a solicitor, is conferred as an integral part of the Rules in O 4 r 14 and O 9 r 1. There is no threshold requirement of special or exceptional circumstances. As Smithers J said of O 4 r 14(2) and O 9 r 3 in Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 73: "Those rules proceed on the basis that there is a discretion in the court to permit a company to commence and carry on any proceedings other than by a solicitor and to enter an appearance or defend any proceeding without a solicitor and, it would seem, it is a discretion to be exercised by reference to all relevant considerations." Nevertheless the policy of the rule is clear that ordinarily a corporation will be required to be represented by a solicitor. Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders. The factual complexities of the case and the capacity of the proposed representative to conduct it effectively are also relevant VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 14 ACLC 1308. There is no doubt that those who chose to carry on their businesses through corporate structures enjoy advantages that those carrying on business on their own account do not enjoy. They also acquire disabilities and obligations. One of the disabilities is that which is imposed by the Rules of Court under consideration in this case. A distinction may be drawn between the case in which the company in question is applicant and that in which it is respondent. In the latter case it may be a more liberal approach to the grant of leave is warranted. ...


case_text: The principles by reference to which the discretion should be approached have been discussed in a number of cases. In some jurisdictions, the granting of leave under rules such as Order 4 rule 14(2) has been held apparently to require exceptional or special circumstances: eg Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104, 107B, 108 E-F, 110 D-G. 4 In Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68, the Full Court of this Court, in particular Smithers J and Keely J, recognised that the discretion was a broad one, to be exercised judicially depending on the existence of sufficient cause. See in particular Molnar at 74-75 per Smithers J and 80 per Keely J. In Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 , French J set out the guiding approach, which has been followed and applied by other judges of the Court: see Australian Communications Authority v Viper Communications Pty Ltd [2000] FCA 982 ; Oakley Inc v Franchise China Pty Ltd [2002] FCA 404. In Termi-Mesh French J said the following at [10]-[14]: Order 9 rule 1 of the Federal Court Rules provides, in the relevant parts: " 1(1) A respondent may enter an appearance and may defend a proceeding by a solicitor or in person. . . . (3) Notwithstanding sub-rule (1) and subject to any Act, a corporation may not without the leave of the Court or a Judge enter an appearance or defend any proceeding except by a solicitor." It should also be noted that O 4 r 14(2) provides that: "Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor." The burden of authority in the Federal Court relates to the latter rule. Equivalent rules in other jurisdictions and particularly England and other Australian States set up an "exceptional circumstances" or like test before leave can be granted Arbuthnot Leasing International Ltd v Havelet Leasing Ltd [1991] 1 All ER 591; Bay Marine Pty Ltd v Clayton Country Properties Pty Ltd (1986) 8 NSWLR 104. In the latter case, Samuels JA in the New South Wales Court of Appeal, saw the court's discretion to dispense with its rules about representation as one to be exercised "only with the most meticulous care" and in exceptional circumstances. The position under the Federal Court Rules however is not as restrictive as that under the English Rules and various of the State Supreme Court Rules . In this respect I refer to what I said in Simto Resources Limited v Normandy Capital Limited (1993) 11 ACLC 856. Although the rationale for the restriction is basically the same in all jurisdictions, the power of the Federal Court to grant leave to a corporation to carry on a proceeding, otherwise than by a solicitor, is conferred as an integral part of the Rules in O 4 r 14 and O 9 r 1. There is no threshold requirement of special or exceptional circumstances. As Smithers J said of O 4 r 14(2) and O 9 r 3 in Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 73: "Those rules proceed on the basis that there is a discretion in the court to permit a company to commence and carry on any proceedings other than by a solicitor and to enter an appearance or defend any proceeding without a solicitor and, it would seem, it is a discretion to be exercised by reference to all relevant considerations." Nevertheless the policy of the rule is clear that ordinarily a corporation will be required to be represented by a solicitor. Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders. The factual complexities of the case and the capacity of the proposed representative to conduct it effectively are also relevant VN International Video Pty Ltd v West End HK TVB Video & Others (1996) 14 ACLC 1308. There is no doubt that those who chose to carry on their businesses through corporate structures enjoy advantages that those carrying on business on their own account do not enjoy. They also acquire disabilities and obligations. One of the disabilities is that which is imposed by the Rules of Court under consideration in this case. A distinction may be drawn between the case in which the company in question is applicant and that in which it is respondent. In the latter case it may be a more liberal approach to the grant of leave is warranted. ...


case_text: I have also had regard to what was said in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002. 6 It is necessary to outline the issues in the case and how the case has been conducted to date. 7 The application was supported by a 14 page statement of claim together with a 5 page schedule. In a summary prepared by counsel then appearing on behalf of the applicant in November 2005, the dispute was described as follows: The following summary is not intended to traverse, alter or amend the statement of claim. Nature of the dispute 1. The dispute concerns SilkEarl's claim that Ainsworth has failed to pay all royalties payable to it under the Royalty Agreement they made on 27 July 1999 (which was amended on 18 October 2001) and the determination of this question will require the Court to construe that Agreement and in particular the critical clauses 3, 4(a)(i) to (iii), 4(c), (d), (e)(i) to (iii), (h), 5 and 6(b), and from the evidence to consider which, if any of the terms of the Royalty Agreement was breached and then to determine what damages ought to be awarded to SilkEarl. 2. Although Ainsworth paid to SilkEarl some monthly payments, SilkEarl shall contend that the payments it received do not accurately represent the amount of royalties which it ought to have been paid and which Ainsworth was and is liable to pay under the terms of the Royalty Agreement.


case_text: Another important feature of the correspondence and the conduct of the case to date is a degree of emotive language used by Mr Maiocchi, at times involving sweeping allegations of impropriety by the respondent and its solicitors. Not all litigation can be conducted in peaceful harmony, but one of the fundamental obligations of any practitioner in the discharge of his or her obligations to the client and to the court is the civil and dispassionate communication with other parties to that litigation: see generally Ex parte Bellanto; Re Prior [1963] SR (NSW) 190 and Garrard v Email Furniture (1993) 32 NSWLR 662 at 667.


case_title: Garrard v Email Furniture (1993) 32 NSWLR 662


case_title: Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68


case_title: Oakley Inc v Franchise China Pty Ltd [2002] FCA 404


case_title: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241


case_text: consenting to the variation, the Commission has also accepted assurances from Toll that Toll will not act in a manner which is inconsistent with the intent of the variation; namely, that Toll and Asciano will only ever have dealings with each other that are at arms [ sic ] length and on normal commercial terms. Additionally, the Commission consents to the variation on the basis that Mr Mark Rowsthorn, Asciano, the Asciano directors and the Toll directors offer undertakings to ensure that Asciano and Toll are in effect wholly separate entities. The relevant operative provisions of the undertaking as varied are found in cl 2.9. So far as they relate to this proceeding, the provisions of cl 2.9 are as follows: Between the Restructure Date and 31 March 2011 Toll will: ... (h) not enter or give effect to a contract, make or give effect to an arrangement or reach or give effect to an understanding which would in effect allow Toll to: (i) share management or employees with Asciano; (ii) second management or employees to or from Asciano; or (iii) subject to sub-clause (g) above, share in any profits or revenues of Asciano; (i) not enter or give effect to a contract, make or give effect to an arrangement or reach or give effect to an understanding which would in effect allow Asciano to: (i) share management or employees with Toll; (ii) second management or employees to or from Toll; or (iii) subject to sub-clause (g) above, share in any profits or revenues of Toll; (j) not enter or give effect to a contract, make or give effect to an arrangement or reach or give effect to an understanding with Asciano unless the terms of the contract, arrangement or understanding are: (i) on an arm's length basis and non-exclusive terms consistent with these Undertakings; and (ii) approved of in advance by the board of Toll and only approved of if the board of Toll is satisfied in good faith after due inquiry that the contract, arrangement or understanding with Asciano is considered arms [ sic ] length and bona fide to be in the best interests of Toll The varied undertaking also include provisions about their interpretation, found in cl 19.2, in the following terms: (b) In the interpretation of a clause of these Undertakings, a construction that would promote the purpose or object underlying these Undertakings (whether that purpose or object is expressly stated in these Undertakings or not) shall be preferred to a construction that would not promote that purpose or object. (c) In the interpretation of these Undertakings, material not forming part of this Undertaking, including the Commission's Public Competition Assessment of May 2006, may be considered: (i) to confirm the meaning of a clause is the ordinary meaning conveyed by the text of the clause taking into account its context in these Undertakings and the competition concerns intended to be addressed by these Undertakings and the clause in question; or (ii) to determine the meaning of the clause when the ordinary meaning conveyed by the text of the clause taking into account its context in these Undertakings and the purpose or object underlying these Undertakings leads to a result that does not promote the purpose or object underlying these Undertakings. (d) In determining whether consideration should be given to any material in accordance with clause 19.2(c), or in considering any weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (i) the effect that reliance on the ordinary meaning conveyed by the text of the clause would have (taking into account its context in these Undertakings and whether that meaning promotes the purpose or object of these Undertakings); and (ii) the need to ensure that the result of these Undertakings is to restore or maintain competition, thereby preventing any competitive harm that may arise as a result of Toll's acquisition of Patrick or the Restructure. (e) In performing its obligations under these Undertakings, Toll will do everything reasonably within its power to ensure that its performance of those obligations is done in a manner which is consistent with promoting the purpose and object of these Undertakings. Construing the undertaking The applicants advanced the contention that the undertaking ought to be construed in a similar manner to a commercial contract, so that its terms would be construed by reference to the surrounding circumstances known to Toll Holdings, Toll Personnel and the ACCC at the time they were entered into, as well as by reference to the plain meaning of the words used in the undertaking and the purpose or object of the undertaking. The ACCC accepted that the ordinary principles in relation to the construction of contracts, particularly agreements to settle legal proceedings, should apply by analogy to the interpretation of the undertaking. These would include evidence of surrounding facts or circumstances known to both parties. These propositions are difficult to accept. Undertakings given pursuant to s 87B of the Trade Practices Act are given statutory force and effect by that section. They are properly to be regarded as statutory instruments, made under the Trade Practices Act . See Australian Petroleum Pty Limited v Australian Competition and Consumer Commission (1997) 73 FCR 75 at 88-89. Such an instrument has a public purpose. Members of the public, including competitors of the person giving the undertaking, are entitled to rely on the fact that undertakings have been given, and upon their terms. So is the Court, if proceedings to enforce an undertaking are ever instituted. The meaning of the words used in an undertaking cannot therefore be modified by reference to facts known only to the party giving the undertaking and the ACCC. The words of an undertaking are to be construed by reference to the principles of construction of a legislative document, and not by reference to the principles of construction of a private contract, whether entered into in settlement of a legal proceeding or not. This means that the first step in construing an undertaking is to ascertain the ordinary meaning of the words used. The ordinary meaning will normally be ascertained by reference to dictionary definitions, although evidence may be led of the common acceptance of specific meanings in a particular trade or industry, or of the use of words as terms of art. The meaning of the words used must be considered by reference to the purpose or object of the undertaking concerned. This requirement is derived from the combination of s 15AA and s 46(1)(a) of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act "), requiring that a construction promoting the purpose or object of an instrument made under an Act (other than one required to be laid before Parliament) is to be preferred to a construction that would not promote that purpose or object. In the present case, the same requirement of a purposive construction of the undertaking has been adopted expressly in cl 19.2(b) of the undertaking. Ordinarily, the purpose or object of an instrument will be ascertainable from the instrument as a whole, whether it is express or to be gathered from the terms of the instrument as a whole. By s 15AB(1) of the Acts Interpretation Act , it is permissible to have regard to material not forming part of the instrument, either to confirm that the meaning of the relevant terms is the ordinary meaning, or to resolve ambiguity. By s 15AB(3) of the Acts Interpretation Act , in considering whether to make use of such extrinsic material, or what weight is to be given to it, it is necessary to have regard to the desirability of persons being able to rely on the ordinary meaning of the terms, taking into account their context and the purpose or object underlying the instrument. Dictionary definitions of "share" and "second" Both parties resorted to dictionary definitions of the crucial words used in the undertaking. The relevant meaning of "share", found in the Oxford English Dictionary, is "To receive, possess, or occupy together with others." The Macquarie Dictionary defines "share" relevantly as "to divide and distribute in shares; apportion", or "to use, participate in, enjoy, etc., jointly." The relevant meaning of "second" in the Oxford English Dictionary is, "To remove (an officer) temporarily from his regiment or corps, for employment on the staff, or in some other extra-regimental appointment. Also transf. of employees in other occupations and employments." Similarly, the Macquarie Dictionary defines "second" as "to transfer (a military officer or other) temporarily to another post, organisation, or responsibility." The purpose or object of the undertaking Both parties were in agreement that the purpose or object of the undertaking was to promote competition. Throughout the process of varying the original undertaking from Toll Holdings on the transfer of aspects of the business to Asciano as a company independent of Toll Holdings, the ACCC's concern was to ensure that Toll Holdings did not obtain a competitive advantage in dealing with Asciano, as against any other person or corporation conducting a business similar to that of Toll Holdings and also using the services of Asciano. To this end, the undertaking was directed towards securing complete separation of Toll Holdings and other companies in the Toll Holdings group, on the one hand, and Asciano on the other hand. These matters are apparent from the recitals to the undertaking as varied, particularly recitals N, O, P and Q. It is unnecessary to have resort to any further material to ascertain the purpose of the undertaking. The proper construction of the undertaking It was also common ground between the parties that there was a failure to comply with cll 2.9(h) and (i) of the undertaking if Toll Personnel shared employees with Asciano or seconded employees to or from Asciano. This was the result of the application of the definition of "Toll" in cl 19.1 of the undertaking, by which the term "Toll" includes related bodies corporate of Toll Holdings and other entities that Toll Holdings is required to consolidate for the purposes of preparing annual financial reports. There is no doubt that Toll Personnel falls within this definition. Therefore either Toll Personnel is taken to have given the undertaking to the ACCC, or Toll Holdings is in breach of the undertaking (if Toll Personnel shared employees with, or seconded employees to or from, Asciano), because those employees are to be regarded as employees of Toll Holdings, by reason of the definition of "Toll".


case_text: Rose and Riva must establish that they suffered a special disability or were placed in some special situation of disadvantage, which rendered them unable to make a worthwhile judgment as to what was in their own best interests and that the Lenders knowingly took advantage of that disability or disadvantage. No special disability or special disadvantage has been established in the present instance. A person will not be in a position of special disadvantage or disability as a result of inequality of bargaining power. Many, if not most, contracts are made between parties of unequal bargaining power and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests ( ACCC v C.G. Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [11]). Unconscientious exploitation of another's inability or diminished ability to conserve his or her own interests is not to be confused with taking advantage of a superior bargaining position ( ACCC v C.G. Berbatis Holdings Pty Ltd at [14]). Notwithstanding that Riva, Moruben and Quadwest were all in default, that Moruben had no contractual entitlement to the discharge of the mortgages over the Moruben Road property in the absence of tender of all monies owing under the Moruben Mezzanine Agreement and had no contractual entitlement to redemption of the Moruben Equity Mortgage because the amount of the Net Project Profit could not be calculated, Mr Rose was seeking indulgences from the Lenders that would permit him to obtain an extension of the facilities granted to Riva. He had no contractual entitlement to such an extension and therefore had to make concessions to the Lenders to obtain such a concession. One of the terms that the Lenders dictated was the provision of personal guarantees by him. While the situation may have been difficult for Mr Rose, and the Quadrant Group generally, it is not a situation that justifies a conclusion that the Lenders brought undue pressure or duress to bear on Mr Rose or Riva or that their conduct was in any way unconscionable. As I have said, the Lenders contend that relief under the Contracts Review Act is precluded by the operation of s 6(2). Clearly enough, the Loan Agreement Variation Deeds entered into by Riva were entered into in the course of the business carried on by Riva, namely, the development of the Chevron Island Property. However, Mr Rose was not personally engaged in the development of the Moruben Road Property, the Chevron Island Property or the Adelaide Terrace Property. To the extent that those developments involved carrying on businesses, those businesses were carried on by Moruben, Riva and Quadwest respectively.


case_title: Watson v Foxman (1995) 49 NSWLR 315

case_text: one party alleges that the conduct of another was misleading or deceptive, it is incumbent upon the first party to establish, on the balance of probabilities, precisely what the conduct was that is alleged to be misleading. In addition, the precise circumstances that rendered the conduct misleading must be established. Where the conduct is the making of oral representations, the words spoken must be proved with a degree of precision that enables the Court to be satisfied, on the balance of probabilities, that the words spoken were misleading in the circumstances established. The question of whether spoken words were misleading may, although not necessarily, depend upon what may have been relatively subtle nuances flowing from the use of a particular word, phrase or grammatical construction or the presence or absence of some qualifying word or phrase or condition (see, for example, Watson v Foxman (1995) 49 NSWLR 315 at 318-319). There is no contemporaneous documentary evidence of the representations alleged by Mr Rose to have been made by Mr Wilson. The sole evidence of the alleged representations is oral evidence given by Mr Rose. To the extent that that evidence is inconsistent with Mr Bevan's evidence, I reject it. I consider that the evidence of the conversation given by Mr Wilson indicates what happened. Accordingly, I shall recount only that version. Mr Wilson accepted that he had a conversation with Mr Rose in March 2006 concerning the sale of the unsold units in the Chevron Island Property. Mr Rose broached the subject by saying that, in his opinion, the Gold Coast market was deteriorating and that he felt an inline sale would be beneficial to the Chevron Island Project. He said that he had a potential inline buyer that would see the " mezzanine deck " portion of the project receive a full return of principal and interest; however, the equity portion of the loan would only receive the principal plus an 8% return, which would leave a 2% shortfall, and there would be no profit share.


case_text: I accept the submission made by counsel for the applicants that the deed poll did not provide for insurance but was in the nature of a guarantee. Counsel referred to the distinction between contracts of insurance and other classes of contract including contracts of guarantee recognised in such cases as Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658 at 662-664 per Channell J; Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450; Seaton v Heath [1899] 1 QB 782 at 789, 792; Re Australian & Overseas Insurance Co Ltd [1966] 1 NSWR 558 per McLelland CJ in Eq.


case_title: Prudential Insurance Company v Inland Revenue Commissioners [1904] 2 KB 658


case_text: In Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160, Emmett J had held that a provision in the Life Insurance Act 1995 (Cth) analogous to s 17C(2) of the Act did not lay down a condition precedent to the existence of jurisdiction in the Federal Court to confirm a scheme. In Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37, Katz J adopted the same approach because his Honour did not think that Emmett J had been plainly wrong. In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450, although with some doubt, I adopted the same approach, namely, of following Emmett J because I did not think his Honour was plainly wrong (at [63]). A similar approach was subsequently taken by Bennett J in Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367 at [11] . Perhaps predictably, I took the same approach in the present case in relation to the question of jurisdiction.


case_title: Re Australian & Overseas Insurance Co Ltd [1966] 1 NSWR 558


case_title: Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450


case_title: Re MLC Lifetime Company Ltd (No 2) [2006] FCA 1367


case_title: Re Royal & Sun Alliance Life Assurance Ltd [2000] FCA 1259 ; (2000) 104 FCR 37


case_title: Seaton v Heath [1899] 1 QB 782


case_text: It is commonly understood that applications for summary judgment should be brought promptly so as to avoid the incurrence of costs in preparing for trial. See Quinlan v Safe International Forsakrings AB [2006] FCA 1718 at [47] . This decision reflects a long line of cases in various jurisdictions. However it is not necessary to consider that proposition for present purposes. The plaintiffs assert that they are entitled to summary judgment or judgment upon the basis of admissions made by Giant Marine and upon the proper construction of the United Kingdom Standard Conditions for Towage and Other Services (Revised 1974) (the "Standard Conditions") which were incorporated into the contract between Giant Marine and Adsteam. 12 Counsel for the plaintiffs submit that notwithstanding payment in each action, I should simply "enter judgment" for each plaintiff. It is said that not infrequently, courts pronounce orders in that form. In my own experience, when a claim has failed completely, it is not uncommon for a court to order that there be judgment for the defendant. In those circumstances there is no need to say more, save as to costs. However, where judgment is entered for a plaintiff, it is almost axiomatic that some relief must be identified. It may be declaratory relief. It may be an award of damages. It may be the making of an injunction or an order for specific performance. To give judgment for a plaintiff without identifying the appropriate relief could be nothing more than a shorthand way of indicating that the plaintiff had been successful and that appropriate orders would be made accordingly. Where there are to be no such orders, such a "judgment" is pointless. Counsel sought to justify the proposed orders upon the basis that they would avoid further disputes between the parties, or between parties and third parties, as to liability for the collision and/or for the relevant damage. In some circumstances, fear of such a future dispute might justify declaratory relief. However, for present purposes, there is no evidence to suggest any reasonable basis for such a fear.