case_text: denial of procedural fairness may arise where the Tribunal does not alert an applicant to the prospect that documents may be found to have been fabricated: eg., Meadows v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 370. In applying this decision, a Full Court has concluded that there had been a denial of procedural fairness in circumstances where a claimant had not been given an opportunity to address a question as to whether documents were genuine: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 , 131 FCR 511. Lee, Hill and Carr JJ there observed: [53] In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. [54] Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. [55] Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary. A general indication to the claimant by the Tribunal that it was having difficulties accepting the claimant as a credible witness, it was there said, was not sufficient to afford the claimant an opportunity to address the genuineness of the documents in issue.


case_outcome: cited

case_title: Minister for Immigration and Citizenship v Le [2007] FCA 1318 , 164 FCR 151

case_text: may be accepted that circumstances may arise where the Tribunal may be exposed to a duty to make further enquiries: eg., Minister for Immigration and Citizenship v Le [2007] FCA 1318 at [77] to [79], [2007] FCA 1318 ; 164 FCR 151 at 178 to 179 per Kenny J. But no such duty arose in the present case. The Tribunal in the present proceeding inspected the documents placed before it by the now Appellant. Its inspection of those documents occasioned it to have reservations as to the authenticity of the documents. The Tribunal's reasons thus record as follows its observations in respect to the document ostensibly emanating from the police and the manner in which the Tribunal resolved those reservations: [42] The Tribunal drew the Applicant's attention to the fact that the photocopy clearly displayed an area where the original typed text "Accuses" gave way to an area obscured by a cut-out piece of white paper over which four names including his own were handwritten in pen. The Tribunal showed the Applicant that the interpolations by pen made a deep enough impression in the paper for them to be discernible through the paper both to the eye and to touch. The Tribunal noted that the blank space created by the obscuring white cut-out ended just above the typed text stating the offence and a space provided within that typed text for the date of the offence. The Tribunal showed the Applicant where the blank cut-out obscured part of the date, and put to the Applicant that all these features indicated that the part of the document linking him to the police and to the purported offence and charge appeared very clearly to be falsified. In respect to the posters, the Tribunal similarly recorded the procedural course it pursued in respect to these documents and its conclusions as follows: [44] The Tribunal looked at the posters the Applicant brought to the hearing. Both of these purported to be notices calling people to come and hear BNP officials speak on issues of the day. Both included photographs of a number of purported BNP officials including the Applicant. The Tribunal put to the Applicant that the font appearing under his photograph in each of the two posters was not consistent with the font under the photographs of the others. The Tribunal put to the Applicant that [if] it found that it could not rely on the other two documents as being genuine reliable documents it would have good reason to give no weight to these posters. The Applicant insisted the posters were genuine and said they had lain in his office a long time. The Tribunal then asked the Applicant why the font under his image was slightly larger than the font under the other pictures, and he said that because the poster was for use in his own area, his name was given prominence. The Tribunal considered this, but was not impressed on sight as to any conscious effort to highlight the Applicant's name, the difference in font was so marginal as to look more like the product of oversight than a deliberate intention to highlight. No challenge could be made as to the fairness of the procedure pursued by the Tribunal. It brought to the now Appellant's attention its concerns and did indeed make further enquiries of him. He was given an opportunity by the Tribunal to respond to those concerns. He was given a further opportunity this morning to make any further submissions he saw fit as to the genuineness of the documents in issue. He confirmed that the Tribunal had made enquiries of him and that there was nothing further he wished to add, other than his submission that further enquiries should have been made overseas.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407

case_text: weight to be given to the evidence before it is a matter for the Tribunal: Abebe v The Commonwealth of Australia [1999] HCA 14 , 197 CLR 510. Gummow and Hayne JJ there observed: [197] ... In the end, the criticisms made by the applicant of the Tribunal's reasoning are criticisms of the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say. Similarly, in Chand v Minister for Immigration and Ethnic Affairs (unreported, FCA, NG 257 of 1997, 7 November 1997) von Doussa, Moore and Sackville JJ observed: The RRT is required to evaluate all the evidence put before it by an applicant for refugee status. Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another ... " A finding on credibility " it has been said, " is the function of the primary decision-maker par excellence ": Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , [2000] HCA 1 ; 168 ALR 407 at 423 per McHugh J. Reference may also be made to SZKRR v Minister for Immigration and Citizenship [2008] FCA 145 at [7] per Bennett J; SZJMH v Minister for Immigration and Citizenship [2008] FCA 270 at [27] per Lander J.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 , 206 CLR 57

case_text: the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require " a running commentary upon an applicant's prospects of success, so that there is a forewarning of all possible reasons for failure ": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31] , [2001] HCA 22 ; 206 CLR 57 at 69 per Gleeson CJ and Hayne J. In the present proceeding, and as explained by the Tribunal, there were indications on the face of the documents themselves to question their authenticity, and the now Appellant was put on notice by the Tribunal as to its concerns and given an opportunity to address those concerns. It was clearly open in such circumstances for the Tribunal to make the findings that it did. The now Appellant could have been left in no uncertainty as to the basis of the Tribunal's concerns about the genuineness of the documents he sought to rely upon and in no uncertainty as to the concerns being expressed about his credibility. There was no " duty " imposed on the Tribunal to make further unspecified enquiries in Bangladesh.


case_title: SZJMH v Minister for Immigration and Citizenship [2008] FCA 270


case_title: SZKRR v Minister for Immigration and Citizenship [2008] FCA 145


case_outcome: affirmed

case_text: application was then filed with the Federal Magistrates Court on 25 September 2008. That Court dismissed the application on 9 December 2008: SZMUF v Minister for Immigration and Citizenship [2008] FMCA 1731. The Appellant now appeals to this Court. He appeared before the Court this morning unrepresented, although he did have the assistance of an interpreter. His Notice of Appeal was filed on 23 December 2008 and his Grounds of Appeal assert three alleged errors committed by the Refugee Review Tribunal, namely: (i) a failure " to exercise its duty under the Migration Act not to put any weight to the documents which I submitted before the Tribunal to support my claim "; (ii) a contention that the Tribunal " underestimated my inability of politics and my involvement with the BNP ... "; and (iii) a failure " to realise the genuine fear which I would face in my home country if the current regime of law and order in Bangladesh would collapse and/or the old regime under which I claimed persecution and political violence rife was reinstated ... ". Written submissions filed by the Appellant with this Court on 18 February 2009 have substantially repeated these arguments.


case_title: WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 , 131 FCR 511


case_text: assessment as to credibility may in turn lead to adverse conclusions being made as to the genuineness of documents: WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [34] per French J (as His Honour then was).


case_title: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 , 80 ALD 568

case_text: of the findings made by the Tribunal in the present proceeding was a finding of fact open to it. The findings as made by the Tribunal were based upon probative material and the reasons it advanced in support of its conclusions do not expose any departure from the duty of the Tribunal to act " judicially " and in accordance with law: WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [19] to [24], [2004] FCAFC 74 ; 80 ALD 568 at 573 to 574 per Lee and Moore JJ; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 per Gordon J. Nor did the Tribunal err in the manner in which it went about making its findings.


case_outcome: referred to

case_text: These reasons relate to orders sought in a Notice of Motion filed by the applicant ("Jarra Creek") on 6 February 2008 seeking leave for the parties and their respective solicitors and counsel to disclose and use for any purpose related to this proceeding any documents and/or information created, disclosed or obtained in two other proceedings before the Court concerning related issues, namely, Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (VID 1650 of 2005) ("the ACCC proceeding") and Cadbury Schweppes Pty Limited v Amcor Limited (VID 1377 of 2006) ("the Cadbury proceeding"). Other orders relating to the form of Opt Out Notice proposed by Jarra Creek and general directions were made on the day of the hearing. In addition, the hearing of questions of privilege and confidentiality was stood over until 7 April 2008. 2 The motion is opposed by the fourth to sixth respondents ("the Visy parties") and the Australian Competition and Consumer Commission ("ACCC"), which is not a party to this proceeding but has made submissions on the basis that its interests are affected by the orders sought. The first to third respondents ("the Amcor parties") do not object to the orders sought, nor does Cadbury Schweppes Pty Limited, which is not a party to this proceeding. 3 The ACCC's position (and the reason it claims its interests are affected by the orders sought) is that to allow disclosure of proofs of evidence and other materials served on the Visy parties in the ACCC proceeding is premature because the implied undertaking which applies to those proofs of evidence are presently the subject of a reserved decision by Gordon J in the Cadbury proceeding. The implied undertaking, which arises from the production of documents under compulsion of a court order, is that the documents may not be used for purposes other than use in the proceeding in which they were required to be disclosed. 4 On 19 February 2008, Gordon J published reasons for decision (see Cadbury Schweppes Pty Limited v Amcor Limited [2008] FCA 88) in which her Honour invited further submissions from the Amcor parties, the Visy parties and the ACCC as to whether the Visy parties are bound by an implied undertaking given in the ACCC proceeding "not to produce the 111 documents enumerated in the Lists of Witnesses Statements filed and served by Visy dated 16 November 2007 and 21 November 2007". These submissions have been filed with the Court, but to date there has been no ruling by her Honour. 5 In these circumstances, I consider that I should await the ruling of her Honour in relation to the documents referred to by the ACCC rather than make a ruling without the benefit of her Honour's reasons in circumstances where there are common legal and factual issues. 6 In relation to the other documents which are not the subject of submissions by the ACCC, there are two questions for decision: • whether previous orders for discovery made in this proceeding have the effect of overriding the implied undertaking attaching to the documents so that the documents in question must be discovered by the Visy parties; and • whether the Court should grant leave to disclose the documents notwithstanding any implied undertaking.


case_text: In relation to the first question it is settled law that where documents are required to be produced under compulsion of a court order, an implied undertaking arises that the party who secures access will not make the contents of the documents public, communicate them to any stranger to the litigation, or use them for any purposes other than those related to the litigation in the course and for the purposes of which they were disclosed. Such an undertaking, however, must give way to any inconsistent statutory provision and to orders of a court in other proceedings for discovery and inspection: see Esso Australia Resources Ltd v Plowman [1995] HCA 19 ; (1995) 183 CLR 10 at 32-33 (per Mason CJ). 8 In this case I have made orders for discovery, but the relevance of an implied undertaking arising out of other proceedings was not raised or considered in the making of those orders. I do not regard the discovery orders granted to date as having the effect of automatically overriding any implied undertaking given by the Visy parties in relation to the documents now sought to be inspected. Accordingly, I reject this basis of Jarra Creek's application. 9 The second and more substantial question before me is whether I ought now to grant discovery and inspection of the documents in respect of which the implied undertaking applies, leaving aside for the moment the documents in respect of which the ACCC objects to production at this stage.


case_outcome: considered

case_text: In Holpitt Pty Ltd v Varimu Pty Ltd [1991] FCA 269 ; (1991) 29 FCR 576 at 579, Burchett J held that the requirement of "special circumstances" when considering an application for release from an implied undertaking meant that the applicant for release must show "some circumstance which takes the matter out of the ordinary course", and that the Court should consider whether the exercise of its discretion would be "in the interests of justice". His Honour also accepted that one relevant circumstance was whether a release from the undertaking could occasion injustice to the person who was required to give discovery.


case_text: These factors were considered and applied by the Full Court in Liberty Funding Pty Limited v Phoenix Capital Ltd (2005) 218 ALR 283 at 289-290, and were regarded as a helpful guide when making a determination as to whether a release from an implied undertaking should be granted by the Court.


case_title: Lombe v Pollak [2004] FCA 593

case_text: The reasoning in Springfield 38 FCR 217 was also applied by Jacobson J in Lombe v Pollak [2004] FCA 593 at [19] , where his Honour referred in particular to the question of whether any prejudice may be suffered by the owner of the document.


case_outcome: applied

case_text: Helpful guidance is found in the reasoning in Springfield Nominees Pty Limited v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225, where Wilcox J, after noting that release from such an implied undertaking may be only given in special circumstances (having regard to the onerous nature of a compulsory order of a court to disclose documents), sets out a number of relevant considerations, including: • the nature of the document; • the circumstances under which the document came into existence; • the attitude of the author of the document and any prejudice the author may sustain; • whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain; • the nature of the information in the document (and in particular whether it contains personal data or commercially sensitive information); • the circumstances in which the documents came into the hands of the applicant; and • most importantly of all, the likely contribution of the document to achieving justice in other proceedings. 13 The reasoning in Springfield 38 FCR 217 was also applied by Jacobson J in Lombe v Pollak [2004] FCA 593 at [19] , where his Honour referred in particular to the question of whether any prejudice may be suffered by the owner of the document. 16 The Visy parties submit that there should be no blanket release from the implied undertaking in this case, and that an opportunity should be provided to non-parties to the litigation whose documents may be disclosed to make submissions as to why any such documents should not be released on discovery in this proceeding. This, it is said, will provide the Court with a chance to consider both the relevant documents and any submissions of non-parties, and then determine whether any prejudice or detriment may accrue to the person providing the information: see the remarks of Wilcox J in Springfield 38 FCR at 225. 17 The Visy parties also refer to s 155AAA(1) of the Trade Practices Act 1974 (Cth) ("the Act ") which prohibits an official of the ACCC from disclosing "protected information". This expression covers information given to the ACCC in confidence or which was obtained under the search and seizure provisions in Part XID of the Act (which includes information obtained under s 155). These provisions, it is said, justify the expectation of a person producing documents in either the ACCC proceeding or the Cadbury proceeding that the information will not be disclosed in this proceeding, a matter which is said to be a relevant consideration for the Court in its exercise of discretion whether to grant the release. 18 On this point relating to the provisions of the Act , the ACCC also refers to the public interest in enforcement of the Act , the need for transparency in the Act 's application and the interests of judicial decisions being fully informed in the light of all relevant material. 20 Having regard to the formulation of the relevant considerations by Wilcox J in Springfield 38 FCR at 225, in this case it appears that it is necessary to consider granting the release in respect of particular documents, rather than simply granting release in respect of a broad class of documents. Accordingly, in this case, I do not think that an order should be made in the unqualified terms sought by Jarra Creek at this stage. Although I accept that cogent reasons have been advanced by Jarra Creek for the grant of a release in the present case, I am not satisfied that I should grant that release on the global basis sought without first investigating the question of prejudice to non-parties. 21 The position taken by the Visy parties on this application is to oppose the grant of a general release until an opportunity has been given to investigate the position of non-parties. The Visy parties suggest that a practical way forward is for them to prepare a list of those documents in their possession which they consider could reasonably be seen to adversely impact non-parties if disclosed, so that the position of such parties could be investigated if necessary. While I agree that a release from the implied undertaking should not be granted until the issue of prejudice has been canvassed, in my view, all other documents which will not either appear on the list prepared by the Visy parties or be the subject of claims for privilege or confidentiality, should be disclosed immediately so that the matter may progress. 22 An opportunity might be given, if appropriate and necessary, to non-parties who may be affected to submit to the Court what prejudice, if any, might arise if a release from the implied undertaking is granted. Clearly such an exercise may be both expensive and time consuming. In the event that there proves to be a great number of such documents which will require investigation, a suitable modus operandi should be agreed upon to deal in a timely and efficient manner with such investigations. However, it may well be that there are only a few (or even no) documents which would give rise to any arguable prejudice. In this way, the discovery process can move forward.


case_title: Australian Federal Police Commissioner v Propend Finance Pty Ltd (1997) 188 CLR

case_text: The privilege asserted is legal advice privilege, which protects confidential communications between a client and his or her legal adviser. The protection of communications passing between third parties and the client's legal adviser does not arise in the present case: all the documents in question are said to be communications created by the OWS or Mr Ronson as State Manager of the OWS (the client) and communicated to the Legal and Advice Branch (the legal adviser). The relevant communications in respect of which privilege is claimed are all contained in documents. Therefore, in determining whether the communications enjoy the privilege claimed, the relevant test to be applied in each case is whether the document was brought into existence for the dominant purpose of obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49. Although no submissions were put directly on the point, it appears from the applicant's list of documents that several of the documents may be copies of documents which, in their original form, are not the subject of privilege. Whether these copy documents enjoy legal professional privilege will depend upon whether the copy was brought into existence for the dominant purpose of obtaining legal advice: Australian Federal Police Commissioner v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501.


case_text: The applicant made two submissions in the alternative. The first related to all the documents in dispute and relied on the fact that Mr Ronson decided on or about 18 August 2006 that legal advice would be sought in relation to the matter being investigated. The submission was that once Mr Ronson decided that he was not going to be able to determine whether there had been a breach of the Act , or whether to recommend the institution of proceedings, without obtaining legal advice, the documents brought into existence thereafter were brought into existence for the main purpose, or the ruling or prevailing purpose, of obtaining legal advice. I am unable to accept this broad submission. Even though I accept Mr Ronson's evidence that on or about 18 August 2006 he decided that it would be necessary for him to seek legal advice, that fact supports, at its highest, only the conclusion that obtaining legal advice was one purpose, alongside the admitted investigatory purpose. To prove the asserted privilege, the applicant is required to show that obtaining legal advice was the dominant purpose. Without 'focused and specific evidence' ( Barnes v Commissioner of Taxation [2007] FCAFC 88 at [18] per Tamberlin, Stone and Siopis JJ) I am unable to find that obtaining legal advice was the dominant purpose behind the creation of the documents. I wish to make clear that I do not regard Mr Ronson's evidence as being in the nature of bare assertions as to his purpose. His evidence usefully explains the particular circumstances of the relevant investigation, including the political and media interest, and how they informed him in reaching the view that seeking legal advice would be necessary. But it does not follow that obtaining legal advice was his dominant purpose in creating any of the several documents, let alone all of them as a general class of document defined only by the fact that they were created after 18 August 2006. 17 The applicant's second submission, put in the alternative, was that the interview documents were privileged. The submission was that those documents either would not have been created but for the purpose of obtaining legal advice, or, if they would have been created regardless, would not have been created at the time that they were in fact created. As a matter of legal principle, this is a sounder basis upon which to assert a claim for legal professional privilege. The applicant conceded that this submission cannot support each claim for privilege made, but only the claims in respect of what I have called the interview documents. 18 I am not satisfied that the evidence before me supports the alternative submission. Mr Ronson did not suggest in his evidence that statements from witnesses would not be obtained in investigations where there was no intention to seek legal advice. His evidence was only that statements were taken more formally where, as in the present case, seeking legal advice was intended. The more formal procedure involved seeking authorisation to record the witness' voice, issuing a caution to witnesses and advising the witnesses that legal proceedings may eventually be instituted. It is not clear on the evidence whether in the present case the reduction into documentary form of the information obtained in the investigation occurred for the dominant purpose of obtaining legal advice. It was for the applicant to establish that, and he has not done so. 19 In the result, I am not satisfied that the dominant purpose for the creation of the documents was the obtaining of legal advice. 20 As I have said, the OWS was an executive agency. The Legal and Advice Branch was a branch of the OWS or, as Mr Ronson put it in the context of the Workplace Ombudsman, its "central legal division". I think it is appropriate to infer that there are qualified lawyers within the Legal and Advice Branch and that they were employees of the OWS.


case_outcome: followed

case_text: The claims of privilege are to be determined by reference to the common law principles. Section 118 of the Evidence Act 1995 (Cth), which creates a statutory legal advice privilege, applies only to the adduction of evidence. Where, as in the present case, privilege is claimed at the pre-hearing stage of discovery, the claim is to be determined by reference to the common law: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at 59 [16] - [17] per Gleeson CJ, Gaudron and Gummow JJ, 73-4 [64] per McHugh J and 100-1 [149] per Callinan J. See also Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at 571 [16] per Gleeson CJ and Gummow J, 606 [135] per Gaudron J and 629 [199] per McHugh and Callinan JJ. The Federal Court Rules , in particular O 33 r 11, do not extend the operation of s 118 beyond 'circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence': Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 at 382-3 [17] per Branson J; see also at 384-5 [33] per Allsop J. 12 The privilege asserted is legal advice privilege, which protects confidential communications between a client and his or her legal adviser. The protection of communications passing between third parties and the client's legal adviser does not arise in the present case: all the documents in question are said to be communications created by the OWS or Mr Ronson as State Manager of the OWS (the client) and communicated to the Legal and Advice Branch (the legal adviser). The relevant communications in respect of which privilege is claimed are all contained in documents. Therefore, in determining whether the communications enjoy the privilege claimed, the relevant test to be applied in each case is whether the document was brought into existence for the dominant purpose of obtaining or giving legal advice: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49. Although no submissions were put directly on the point, it appears from the applicant's list of documents that several of the documents may be copies of documents which, in their original form, are not the subject of privilege. Whether these copy documents enjoy legal professional privilege will depend upon whether the copy was brought into existence for the dominant purpose of obtaining legal advice: Australian Federal Police Commissioner v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501.


case_text: The claims of privilege are to be determined by reference to the common law principles. Section 118 of the Evidence Act 1995 (Cth), which creates a statutory legal advice privilege, applies only to the adduction of evidence. Where, as in the present case, privilege is claimed at the pre-hearing stage of discovery, the claim is to be determined by reference to the common law: Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67 ; (1999) 201 CLR 49 at 59 [16] - [17] per Gleeson CJ, Gaudron and Gummow JJ, 73-4 [64] per McHugh J and 100-1 [149] per Callinan J. See also Northern Territory v GPAO [1999] HCA 8 ; (1999) 196 CLR 553 at 571 [16] per Gleeson CJ and Gummow J, 606 [135] per Gaudron J and 629 [199] per McHugh and Callinan JJ. The Federal Court Rules , in particular O 33 r 11, do not extend the operation of s 118 beyond 'circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence': Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379 at 382-3 [17] per Branson J; see also at 384-5 [33] per Allsop J.


case_text: The evidence required to establish the professional relationship necessary to establish independence will depend on the circumstances. In the case of a person engaging a private firm of solicitors, independence almost invariably will be established by those facts alone. In the case of a lawyer employed by a private company more may be required to establish independence, particularly if there is evidence suggesting that the solicitor was on occasion asked to advise on management or commercial matters (see, for example, Seven Network Limited v News Limited [2005] FCA 142 at [4] and [38] per Tamberlin J). I do not think Graham J in Telstra was saying any more than that in the circumstances before him the evidence was insufficient to establish the required degree of independence of the internal legal advisers.


case_title: Seven Network Ltd v News Ltd [2005] FCAFC 125 ; (2005) 144 FCR 379


case_outcome: distinguished

case_text: First, they submit that the onus was on the applicant to establish his claim for privilege and that included adducing evidence that the Legal and Advice Branch was independent of the OWS. It was submitted that the applicant had put forward no evidence, or insufficient evidence, of the Legal and Advice Branch's independence. It was submitted that this case is similar to that before Graham J in Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts (No 2) [2007] FCA 1445 (" Telstra ") in which his Honour held that the absence of evidence establishing the independence of the internal legal advisers was fatal to the claim of privilege. 25 The evidence required to establish the professional relationship necessary to establish independence will depend on the circumstances. In the case of a person engaging a private firm of solicitors, independence almost invariably will be established by those facts alone. In the case of a lawyer employed by a private company more may be required to establish independence, particularly if there is evidence suggesting that the solicitor was on occasion asked to advise on management or commercial matters (see, for example, Seven Network Limited v News Limited [2005] FCA 142 at [4] and [38] per Tamberlin J). I do not think Graham J in Telstra was saying any more than that in the circumstances before him the evidence was insufficient to establish the required degree of independence of the internal legal advisers.


case_text: In Waterford v The Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 the High Court held that salaried lawyers within the Government were legal advisers to a Government department for the purposes of legal professional privilege and the requirement of independence was discussed in that context. Mason and Wilson JJ said (at 62): "Whether in any particular case the relationship is such as to give rise to the privilege will be a question of fact. It must be a professional relationship which secures to the advice an independent character notwithstanding the employment." 26 In this case the applicant might have put forward more detailed evidence as to how the Legal and Advice Branch operated and its role in the OWS organisation. However, in my opinion, this case has similarities with the facts in Waterford and, subject to the respondents' second submission, the necessary degree of independence has been established, or, put another way, it has been established that the Legal and Advice Branch was a legal adviser for the purposes of legal professional privilege. 27 Secondly, the respondents submitted that the fact Ms Byrne, as head of the Legal and Advice Branch, was the decision-maker meant that documents brought into existence for the purpose of submission to the Legal and Advice Branch could not have been brought into existence for the purpose of obtaining legal advice. It was submitted that they must have been brought into existence as part of the process of making a recommendation to the Legal and Advice Branch. I reject this submission. One of the Legal and Advice Branch's functions was to provide legal advice and Mr Ronson said that from 18 August 2006 it was clear to him that he was going to seek legal advice in relation to the matter. He said that some time between the end of September 2006 and 5 October 2006 he sought legal advice from the Legal and Advice Branch. I infer that it was not until some time after 23 October 2006 that he made his recommendation and Ms Byrne made her decision. In those circumstances, the fact that the head of the Legal and Advice Branch was the decision-maker does not foreclose a conclusion that a purpose for the creation of the documents was the obtaining of legal advice. 28 Although I reject the respondents' submissions to the effect that the applicant had not shown the necessary degree of independence for the purpose of legal professional privilege none of my conclusions on this issue affect my conclusion on the first issue, namely, that the applicant has failed to establish that the dominant purpose for the creation of the documents was the obtaining of legal advice.


case_text: 7 rule 9 of the Rules applies to service outside the jurisdiction in addition to service within Australia. In Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2007] FCA 124 at [8] , Allsop J noted that the various meanings that can be attributed to the word 'impractical' include 'practically impossible' or ' that (which) cannot be carried out or done '. I am satisfied that it has been impractical to serve the documents in the manner prescribed in the Rules. I am also satisfied that the proposed course of service, by delivering a copy of the documents both by hand and by mail to Mr Sood at the residential address at which he appears to reside and at his business address and by email at his last known email address, is appropriate for the purpose of bringing the documents to Mr Sood's notice. Accordingly, I make orders 1 to 5 in the notice of motion. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 15 October 2009 Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: The respondents did not appear for this notice of motion. Date of Hearing: 8 October 2009 Date of Judgment: 8 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1166.html


case_text: area for which the determination is sought is, as mentioned above, various allotments in the locality of the town of Elliott. The determination area is part of Mudburra-Jingili country lying to the south and east of the determination area recognised in the matter of King v Northern Territory of Australia [2007] FCA 944. (Hereafter referred to as the Newcastle Waters matter.) The proximity of the determination area to that of Newcastle Waters is relevant to this proceeding as the Applicants are the same estate groups recognised as Native Title Holders by the Newcastle Waters Determination. Schedule A of the parties minute of proposed orders describes the determination area by reference to lot and portion numbers and an accompanying map (referred to as schedule B) clearly identifies the location of all parcels. The parties' joint submission informs the Court that section 47 B of the Native Title Act 1993 (Cth) (the Act) have been met in relation to a number of the parcels, with the effect that any prior extinguishment of native title over these parcels can now be disregarded. Section 87 of the Act sets out the Court's power to make orders sought by consent of the parties. That section requires the period of notice under s 66 of the Act to have elapsed, that a signed copy of the agreed orders has been filed with the Court, and that the Court is satisfied that the orders are within its power and appropriate to make.


case_text: discretion conferred by s 87(1) of the Act must be exercised judicially, and in exercising it, the Court must have regard to the object and purposes of the Act, one of the most important being the resolution of disputes by negotiation and agreement, rather than litigation Lota Warria (on behalf of the Poruma and Masig Peoples) v State of Queensland (2005) 223 ALR 62 at [7]. The words of the section make it clear that the question for the Court is whether it is appropriate to make an order in the terms of the agreement reached between the parties, with the central focus of the section being the existence of an agreement. Satisfying the Court that it is appropriate for an order to be made should not be seen as the last hurdle to be overcome before the parties reach their ultimate goal of a consent determination of native title. Instead s 87 should be regarded as the opportunity for the Court to recognise the parties' success in reaching the ultimate goal of a negotiated agreement, and facilitating that agreement by making an appropriate determination in accordance with its terms.


case_text: North J said in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 at [61] : " ... when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis...."


case_title: Munn (for and on behalf of the Gungari People) v Queensland (2001) FCA 1229

case_text: Munn v Queensland [2001] FCA 1229 Emmett J observed that the Court's deliberations on an application under s 87: "... would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely." The terms of the agreement between the parties are in writing, the agreement is signed by or on behalf of the parties and the agreement is filed with the Court. The parties have had the benefit of independent and competent legal representation in arriving at this agreement, the terms of the order are clear and the agreement has been produced as a result of a process of negotiation. In this matter the Northern Territory is the sole respondent party. It is clear on the evidence before me that it has taken a real and significant interest in the proceedings. Before the proposed consent orders were signed the Northern Territory had Emeritus Professor Sansom, who had also been the expert anthropologist for the Northern Territory in the Newcastle Waters matter, consider the anthropological material going to the existence of native title. Professor Sansom's queries in relation to the material initially provided in this matter were subsequently answered to his satisfaction by the applicants. Furthermore, the Northern Territory Cabinet considered the proposed consent orders and instructed the Solicitor for the Northern Territory to agree to the proposed consent determination of native title. I am therefore satisfied that the interests of the community generally have been properly considered by the Northern Territory. There can be no doubt about the jurisdiction of the Court to make the orders sought (see s 81 of the Act) and there is nothing in the agreed terms that would suggest that the power of the Court would be exceeded. The proposed order set out details of each of the matters mentioned in s 225 thus satisfying the requirements of s 94A of the Act.


case_text: Practically speaking, Black & Decker had no alternative to commencing this proceeding in the Federal Court or some other "prescribed court" i.e. the Supreme Court of a State or Territory; see Patents Act 1990 (Cth) s 120(1) and the definition of "prescribed court" in Sch 1. Such a proceeding could have been brought in "another court having jurisdiction to hear and determine the matter". However the Federal Magistrates Court is not such a court, nor is the County Court of Victoria, although it may have jurisdiction to determine patent infringement issues in the course of other proceedings: AR Jamieson Investments Pty Ltd v Robak Engineering & Construction Pty Ltd [1998] VSC 69 ; Bucknell D, Beattie K, Goatcher A, Rofe H, Australian Patent Law (LexisNexis Butterworths, 2004) at 186.


case_text: The respondent, which vigorously prosecuted a cross-claim for revocation of Black & Decker's patents and design, can hardly complain that the present proceeding was commenced in a "prescribed court", being the only court in which a revocation proceeding could be brought: Patents Act s 138 ; see LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10 at [17] ; Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 64 IPR 57 at [8]-[9]; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [203] ; Axe Australasia Pty Ltd v Australume Pty Ltd (No 2) [2006] FCA 844 at [6] ; Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287 at [32].


case_title: Axe Australasia v Australume [2006] FCA 844


case_text: The respondent has recently changed its name to Sunaone Pty Ltd. Under its former name GMCA Pty Ltd it was found to have infringed Black & Decker's standard and innovation patents: Black & Decker Inc v GMCA Pty Ltd (No 2) (2008) 76 IPR 99. I subsequently ordered that Black & Decker's costs be the subject of a gross sum order under O 62 r 4(2)(c) and (d) of the Federal Court Rules : Black & Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737.


case_title: Black & Decker Inc v GMCA Pty Ltd (No 4) [2008] FCA 1737


case_text: Black & Decker elected to take an account of profits, which were duly assessed at $77,275.10: Black & Decker Inc v GMCA Pty Ltd (No 5) [2008] FCA 1738. Under O 62 r 36A where a party is awarded judgment for less than $100,000 for a money sum or damages any costs ordered to be paid will be "reduced by one-third of the amount otherwise allowable under this Order unless the Court or a Judge otherwise orders". A gross sum would be an amount "allowable" under O 62. 8 I am satisfied the Court should otherwise order. The case was a substantial one concerning patent and design infringement and validity. The trial ran for seven days. There was substantial expert evidence and no less than 45 pieces of prior art advanced at various times by the respondent.


case_title: LED Builders Pty Ltd v Hope [1994] FCA 1353 ; (1994) 53 FCR 10


case_text: The relevant principles and details of previous cases where O 62 r 4(2)(c) gross sum assessments have been made are summarised by Sackville J in Seven Network News Limited v News Limited [2007] FCA 2059 at [25] - [34] . I incorporate that passage in these reasons. 5 Mr McGregor identified 10 items where he disagreed with Ms Gourlay's assessment. With one exception, it seemed to me that Ms Gourlay had taken quite a conservative approach and that her opinion should be accepted. The one exception was in relation to expert witness fees where the fees paid were very much in excess of the scale rate. I thought the sum suggested by Ms Gourlay should be reduced by $33,000. 6 The net result is that I assess the gross sum at $825,000. By way of a check, this sum is roughly half of the amount actually paid by Black & Decker, so that gives additional comfort that the gross sum assessed is not excessive.


case_title: Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788


case_title: Tu v Pakway Australia Pty Ltd (2006) 227 ALR 287


case_title: Salfinger v Niugini Mining (No 3) [2007] FCA 1532

case_text: On 8 October 2007 I ordered that the separate question to be determined be answered in the negative with judgment for the respondents with costs: Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532. I found that the applicant's claim was entirely without merit and fraudulent. I gave the applicant leave to file written submissions within seven days to show cause why costs should not be on an indemnity basis. 2 The applicant filed three submissions, each bearing the date 16 October, although they were in fact filed later. 3 Essentially the applicant's arguments against indemnity costs were based on his status as an unrepresented litigant who was not legally qualified. He made various complaints about the substantive merits of my decision and alleged procedural injustices, but I do not see that as relevant for present purposes.


case_text: Section 43(2) of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to award costs in a proceeding. Traditionally costs only depart from the ordinary party-party basis where there is a particular or special circumstance: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 per Shepphard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. An order for indemnity costs aims to compensate a party fully for costs incurred when the Court takes the view that it has been innocently and unreasonably subjected to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed). 5 In Colgate-Palmolive Shepphard J (at 232-235) summarised some of the special circumstances which have led to an award of indemnity costs, including the making of allegations of fraud knowing them to be false, making of irrelevant allegations of fraud, commencing proceedings in wilful disregard of known facts, the making of allegations which ought never to have been made and the undue prolongation of a case by groundless contentions. In these circumstances a party's behaviour in the conduct of the proceeding means it is so unreasonable as to be unjust that the innocent party is limited in its recovery to party and party costs: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1350 at [4] .


case_text: Section 43(2) of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide discretion to award costs in a proceeding. Traditionally costs only depart from the ordinary party-party basis where there is a particular or special circumstance: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, at 232-233 per Shepphard J and Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 at 234 per Black CJ and French J. An order for indemnity costs aims to compensate a party fully for costs incurred when the Court takes the view that it has been innocently and unreasonably subjected to the expenditure of costs: Hamod v New South Wales (2002) 188 ALR 659 at 665 (Gray J, with whom Carr and Goldberg JJ agreed).


case_title: Hamod v New South Wales (2002) 188 ALR 659


case_text: In Colgate-Palmolive Shepphard J (at 232-235) summarised some of the special circumstances which have led to an award of indemnity costs, including the making of allegations of fraud knowing them to be false, making of irrelevant allegations of fraud, commencing proceedings in wilful disregard of known facts, the making of allegations which ought never to have been made and the undue prolongation of a case by groundless contentions. In these circumstances a party's behaviour in the conduct of the proceeding means it is so unreasonable as to be unjust that the innocent party is limited in its recovery to party and party costs: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1350 at [4] .


case_text: The first and second respondents submitted that the indemnity costs were appropriate because the applicant's conduct went beyond unreasonable and was found to be fraudulent. They submitted that full compensation of costs as innocent respondents was appropriate where an action has been commenced or continued where "an applicant, properly advised, should have know that he had no chance of success... and must be presumed to have been commenced or continued for some ulterior motive": Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.


case_text: In Spalla v St George Motor Finance Ltd [2006] FCA 1537 Kenny J at [26] recently noted that courts have from time to time overcome a reluctance to order indemnity costs against self-represented litigants: Bhagat v Global Custodians [2002] FCAFC 51 and Ogawa v The University of Melbourne (No 2) [2004] FCA 1275. Kenny J considered the competing interests in determining whether to make an award of indemnity costs against a self-represented litigant. A lack of knowledge of the law, unfamiliarity with court practice and a lack of objectivity are common traits of unrepresented litigants. A person's ability to get redress should not depend on lawyerly skills or an ability to pay for legal representation. However, the Court owes a duty to all parties to ensure that the trial is conducted in a fair and timely fashion (at [28]) and without significant difficulties and unnecessary expense for the parties against whom an unrepresented litigant proceeds. see Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 at [13] per Hodgson CJ. In this instance the expense, delay and difficulties caused by the applicant's fraudulent and unreasonable behaviour overshadow any limitations that arose from his status as self-represented.


case_title: Bhagat v Global Custodians [2002] FCAFC 51


case_title: Ogawa v The University of Melbourne (No 2) [2004] FCA 1275


case_title: Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159


case_text: The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention. 17 In NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 at [58] a Full Court (Wilcox, Lindgren and Bennett JJ) said: "s 417 of the Act gives power to the Minister, where the Minister thinks it is in the public interest to do so, to substitute for a decision of the RRT another decision more favourable to an applicant, whether or not the RRT had the power to make that other decision. This is a general humanitarian power. The power would be available to the Minister where, for example, a person had a well-founded fear of loss of life or liberty, or of torture or other mistreatment, but for a reason which is not a Convention reason. Section 351 of the Act gives the Minister the same power in relation to decisions of the Migration Review Tribunal under Pt 5 of the Act." To the same effect is another Full Court's decision in M38 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290 at [80] . See also Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191 at [6] the discretion may be exercised on "compassionate or humanitarian grounds". 22 The Magistrate's decision, if correct, would apply to s 417, and would confine the Minister acting under that section to what might be called refugee related matters relevant to visa applicants within the jurisdiction of the Refugee Review Tribunal. As NATB and 325/2002 show, that is not the case. 26 In my view the Magistrate drew too much from the existence of the two sets of provisions. The authorities on s 417 to which I have referred would have provided better guidance, especially given that the Full Court in NATB described s 351 as conferring "the same power" on the Minister in relation to decisions of the Migration Review Tribunal as that conferred on her by s 417 in relation to decisions of the Refugee Review Tribunal, namely a general humanitarian power. 27 In my view the Tribunal did not take into account an irrelevant consideration when it relied on the respondent's failure to mention his Falun Gong practices in his request under s 351 by reason of the fact that it was not a matter that could be taken into account by the Minister. 28 In what I have said thus far I have addressed the issue upon which the parties distinctly crossed swords: whether it was relevant to the Minister's consideration of the respondent's request under s 351 that he feared that if he were to return to China he would be harmed by reason of his practice of Falun Gong. In my view it was.


case_text: The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention. 18 In SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) one question was whether for the purposes of s 198(6) of the Act the exercise of the discretionary power in s 417(1) is a review of an application for a substantive visa. Mansfield J held it was not. His Honour said at [24]: "The power to substitute a decision for a decision of the Tribunal is qualified only by the limitations preserved in s 417(2) and by the respondent having the opinion that the grant of the visa is in the public interest. The power to substitute a more favourable decision is not one which readily fits into the concept of a review. The power may be exercised independently of the Tribunal's decision, and irrespective of the reasons for the Tribunal's decision. The respondent may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act." 19 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 at [45]-[46] Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ said: "when exercising the power under s 417, the Minister was not bound either by Subdiv AA (ss 44-51) or Subdiv AC (ss 65-69) of Div 3 of Pt 2 of the Act, or by the Regulations. That follows from the terms of s 417(2). Subdivision AC contains the central provision in s 65 obliging refusal to grant a visa if the Minister be not satisfied that the criteria prescribed by the Act or the Regulations for the relevant visa have been satisfied. Further, s 417(3) stipulates that the power under the section may only be exercised by the Minister personally. The identification of the Minister as the sole repository of the power indicates the legislative intention that the question of the substitution of a more favourable decision to disappointed applicants is to be answered by the taking of a broad approach. The point is emphasised by the express statement in s 417(1) that the power is to be exercised if the Minister "thinks that it is in the public interest to do so" and by the requirement in sub-ss (4), (5) and (6) respecting the laying before each House of the Parliament of a statement by the Minister where a decision more favourable to the applicant has been substituted."


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2003 [2003] HCA 1 ; (2003) 211 CLR 441

case_text: The Minister's relied on a series of decisions that have noted the broad discretion under ss 351 and 417: NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506; M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 199 ALR 290; SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) [2004] FCA 104 and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 ; (2003) 211 CLR 441. These decisions were apparently not drawn to the Magistrate's attention.


case_text: In Applicants 325/2002 v Refugee Review Tribunal [2006] FCAFC 59 a Full Court (Moore, Nicholson and Conti JJ) refused to interfere with the decision of a single judge refusing to grant orders nisi for constitutional writs on the ground that there was no viable basis therefor. However at [39] Conti J, with whom the other Judges agreed, referred to s 417: "Whilst cognisant of the confined scope of the issues arising on the appeal, I would nevertheless commend for reconsideration by the Minister, pursuant to s 417 ..., the following factors concerning this evidently unfortunate family, which may conceivably be thought to render permissible their remaining in Australia upon some appropriate visa basis. They are factors which might warrant reconsideration upon grounds divorced from the issues that have arisen for resolution on the appeal, being factors to which reference has already been made in the course of the reasons for judgment". 21 His Honour then listed the factors, which included injuries suffered by two of the applicants in a fire in Belgium before they came to Australia, their residence here for eleven years, the birth and schooling in Australia of a daughter of two of the applicants, and support provided to them by the wider Australian community. As his Honour said, these were factors that were extraneous to the refugee related matters with which the relevant Tribunals' decisions were concerned. As appears from [7] and [8], s 351 is in essentially the same form as s 417. The purpose and object of the two sections must be the same: to enable compassionate and humanitarian relief to be granted. In each case a broad approach is to be applied. The public interest referred to in each section is itself a broad concept, and there is no reason to confine the exercise of the power to ameliorate an applicant's position consequent on the denial of a visa by reference to matters relevant only to the granting or refusal of that visa. 325/2002 is an example of matters proper for the Minister to take into account under s 417 that were not relevant to the grant or refusal of a protection visa. The same approach should be available under s 351. 22 The Magistrate's decision, if correct, would apply to s 417, and would confine the Minister acting under that section to what might be called refugee related matters relevant to visa applicants within the jurisdiction of the Refugee Review Tribunal. As NATB and 325/2002 show, that is not the case.


case_text: Where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40. Accordingly, a consideration will be irrelevant only if the applicable statute expressly or impliedly prohibits a tribunal from taking it into account: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160 ; (2000) 102 FCR 517 at [137] .


case_title: Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2000] FCA 1160 ; (2000) 102 FCR 517


case_text: This is an application, under s 33V of the Federal Court of Australia Act 1976 (Cth) ("the Act "), for the Court to approve a settlement of part of a representative proceeding. The details of the proceeding in which the application is made are summarised in the judgment of Gordon J in Haslam v Money for Living (Aust) Pty Ltd (Administrators Appointed) [2007] FCA 897 at [2] - [4] . The settlement has been reached between certain of the applicants, acting on behalf of all group members, and the first and second respondents. It will be convenient to refer to it as "the MFL settlement". The terms of the settlement were contained in a deed dated 13 November 2007. The deed was a confidential exhibit in the proceeding. 2 By order dated 30 November 2007 (as varied by a further order which I made this morning) I ordered that: "1... 2... 3 On or before 3 December 2007 the Applicant's solicitors shall post by ordinary mail to all group members in the representative proceeding: a a notice of proposed settlement in a form approved by the Court in respect of settlement of the representative proceeding in terms of the Deed of Settlement between the Applicant's and the first and second Respondents dated 13 November 2007 ("the Deed of Settlement"); and b an opt out notice pursuant to s 33J of the Federal Court of Australia Act 1976 (Cth) ("the Act ") in a form approved by the Court; 3A any group member who wishes to exercise their right to opt out of this representative proceeding shall on or before 4.00 pm on 18 December 2007 file with the Court a completed opt-out notice. 7 The principles which guide the exercise of the Court's power under s 33V and the considerations which are, or may be, relevant in the exercise of the power have been identified in a series of cases. Those authorities have, conveniently, been collected by Gordon J in Haslam at [17]-[20]. I have had regard to those principles and considerations which arise in the present application in dealing with it. 8 The application is supported by an affidavit of Mr Leonard Adrian Warren, a principal of Russell Kennedy, the solicitors for the applicant. He deposed to the following relevant matters: • His communications with group members had led him to the belief that they are "broadly in favour of the proposed settlement." • Most of the group members had attended the mediation at which the settlement was negotiated. A broad outline of the settlement was explained to them and all of them were in favour of the settlement. • He had explained to each of the group members the strength and weaknesses of their legal position on various legal issues and had concluded "that the proposed settlement is fair and reasonable, having regard, in particular, to the possibility that a worse result may have been achieved at trial." • Approval of the settlement will save the group members substantial costs and anxiety associated with a trial at which they were not assured of success. 9 As is already noted the terms of the MFL settlement are confidential. It is sufficient for present purposes to note that it provides for measures by which title to their properties will be restored to group members.


case_text: Prior to closing submissions, Mr O'Gorman for the applicant stated he no longer pressed the applicant's direct discrimination claim under s 5 DD Act (TS p 285 ll 29-31). I note that it has been held in numerous cases that findings of direct and indirect discrimination are mutually exclusive ( Australian Medical Council v Wilson (1996) 68 FCR 46, Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349), and that the applicant in this case chose to pursue an indirect discrimination claim under s 6 DD Act , as well as a separate claim pursuant to s 9. 70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows: "i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111; ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83; iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable..."


case_text: Some support for an interpretation which recognises the breadth of the statute can be found in two US cases where similarly drafted legislation was considered: • In Bronk v Ineichen 54 F 3d 425 (7th Cir 1995) two profoundly deaf tenants complained that they had been the subject of discrimination by their landlord in relation to their dog which they claimed as a hearing dog. In acknowledging that it was necessary to establish as a minimum that the disabled persons' quality of life would be enhanced because the effect of their disability would be ameliorated by the accommodation of the animal (at 429), the United States Court of Appeals Seventh Circuit held that lack of formal schooling did not mean that the dog did not have enough skills to actually aid in the daily functions of a deaf person (at 430, 431). The relevant legislation in that case was Wis Stat Ann SS101.22 (4)(bm) which related, inter alia , to "an animal that is specially trained to lead or assist the individual with impaired vision, hearing or mobility...". • In Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998) where the landlord argued that the dog was not an appropriate accommodation for a deaf person because the plaintiffs were unable to produce any "verification" that the dog was a "certified" hearing assistance trained animal, the United States District Court found in favour of the plaintiff on grounds including that there was no relevant certification process for hearing dogs and no requirement as to the amount or type of training a service animal must undergo (at 1255-1256). The relevant legislation in that case was Or Rev Stat SS346,690 which prohibited a landlord from refusing to rent a dwelling unit to a physically impaired person on the basis of the use or possession of an assistance animal.


case_text: The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: • it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] • whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 • a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 • the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 • the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". • the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143. 66 This submission accords with comments of Sackville and Stone JJ in Clarke [2004] FCAFC 197 ; 138 FCR 121 where, in considering a claim brought against the Catholic Education Office in relation to facilities to be provided to a profoundly deaf child in Year 7, the "base group" was students admitted to Year 7 at the school in the relevant year or, alternatively, all students enrolled at the school in the relevant year. As their Honours also observed at 144: "The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic at 187, a 'proportion must be a proportion of something'. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person's ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the 'proportion' able to comply with a requirement in relation to only one person." 67 In this case the obvious "base group" constitutes members of the community who wish to access Cairns Base Hospital and/or Smithfield Community Health Centre. There is however dispute as to the nature of the comparator group, namely whether it constitutes people with the specific disorder suffered by the applicant (as submitted by Mr Murdoch) or people with a psychiatric disability (as submitted by Mr O'Gorman). Even in relation to the nature of the group, should it be defined as people with the applicant's disorder, evidence is scanty. As was made clear in the evidence of Dr Unwin, schizo-typal personality disorder is the rarest of the personality disorders (TS p 181 ll 40-43). 68 Mr Murdoch has submitted that I should make no finding as to this issue in light of the lack of evidence of the proportion of people with the applicant's disability who cannot comply, and the medical evidence of Dr Unwin that there is no difference between the proportion of people with and without the applicant's disability who can comply. There is no evidence before me as to the proportion of members of the comparator group (however defined) who would have difficulty complying with the requirement or condition of the respondent in this case. 69 However, I am persuaded, as submitted by Mr O'Gorman, that commonsense dictates that the majority of people in the community, including the community which seeks to access Cairns Base Hospital and/or Smithfield Community Health Centre, would have no difficulty accessing the premises without an animal, and do not require an assistance dog to be able to access the respondent's premises. Accordingly for the purposes of s 6 , I am prepared to hold that a substantially higher proportion of persons without the applicant's disability are able to comply with the requirement or condition imposed by the respondent in this case. 70 Principles relevant to this question were summarised by Sackville and Stone JJ in Clarke 138 FCR at 145-146 as follows: "i. The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111; ii. The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83; iii. The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and iv. The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement condition: Waters v Public Transport Corporation at 395... However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable..." 76 The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).


case_text: The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481). 140 Section 23(1)(c) DD Act - that is, the means of access to the premises - was in issue in Cooper [1999] FCA 180 ; 93 FCR 481 where the Coffs Harbour City Council had allowed redevelopment of a cinema complex without requiring that wheelchair access be incorporated as a part of the redevelopment. 150 Finally, I note the very limited defence (or ground of exculpation as so termed by Madgwick J in Cooper [1999] FCA 180 ; 93 FCR 481 and Drummond J in Sluggett [2002] FCA 987 ; 123 FCR 561) in s 23(2) available to a respondent who has breached s 23(1). It is curious that s 23(2) is so narrowly drafted, in comparison for example with the much broader provision in s 24(2) in relation to conduct in breach of s 24(1). However the form in which s 23(2) is drafted is matter for Parliament, not the Court, and does not in my view limit the manner in which s 23(1) should be interpreted. The defence of the respondent as pleaded in relation to unjustifiable hardship was not referable to the design or construction of its premises as contemplated by s 23(2) , and accordingly is of no relevance in the context of s 23. 157 A number of general principles have developed in relation to the concept of "unjustifiable hardship" within the terms of the DD Act . These principles include the following: • the issue whether the alleged discriminator is potentially subject to unjustifiable hardship arises only once the applicant establishes that the alleged discriminator has engaged in unlawful conduct: Cooper 93 FCR at 491-492, Sluggett 123 FCR at 568, Daglian [2003] FCA at [113]-[114] • the respondent bears the onus of showing unjustifiable hardship within the meaning of s 24(2): Cooper 93 FCR at 492, Sluggett 123 FCR at 568 • the concept of "unjustifiable" hardship suggests that some hardship is justifiable, and requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors: Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658 ; (2000) 100 FCR 306 at [48] .


case_text: The Act clearly contemplates that a disabled person may have an assistance animal trained to assist in alleviating the effects of their disability, or use palliative and therapeutic devices or auxiliary aids, or be accompanied by an interpreter, reader, assistant or carer. The Act contemplates that a disabled person is entitled to this assistance, or other forms of support such as, for example, a stool in appropriate circumstances ( Daghlian v Australian Postal Corporation [2003] FCA 759) , studies in Auslan for a deaf child ( Clarke [2004] FCAFC 197 ; 138 FCR 121; Hurst v Queensland [2006] FCAFC 100 ; (2006) 151 FCR 562) or wheelchair access ( Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 ; (1999) 93 FCR 481).


case_text: The concept of "requirement or condition" within the meaning of s 6 or its State equivalents has been considered in a number of cases. Relevant principles include: • it is only if the alleged discriminator can be said to have required, in the sense of "obliged" or "compelled" the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission [2002] FCA 987 ; (2002) 123 FCR 561 at 577, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81] • whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia , use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394 per, Sackville and Stone JJ in Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577 • a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360, Clarke 138 FCR at 143 • the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143 • the notion of "requirement or condition" would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361, Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361: "...it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands". • the expression "requirement or condition" should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394, Clarke 138 FCR at 143.


case_title: Fischer v Stuart (unreported, Supreme Court NT, Forster CJ, 25 July 1979)

case_text: Second, and more importantly, I have genuine concerns about the operation of s 9(1)(f) DD Act as presently drafted. I accepted the submissions of the applicant and the Commissioner as to the lack of qualification of the word "trained", because in my view it accorded with the meaning of the word in the Act. However, the language of the Act, in permitting a broad interpretation, in my view poses risks as to the functioning in the community of disabled persons with genuine assistance animals. The current form of s 9(1)(f) DD Act as drafted has the following potential consequences: • any animal that has been trained to assist a disabled person to alleviate the effect of his or her disability appears to fall within s 9(1)(f) DD Act . So, for example, capuchin monkeys and miniature horses appear to be considered assistance animals notwithstanding that there may be minimal community acceptance of such animals as assistance animals (I note by way of illustration http://advocacy.britannica.com/blog/advocacy/2007/01/service-animals-help-humans-live-fuller-lives/ ) • arguably inherently dangerous animals such as dingoes ( Fischer v Stuart , unreported, Supreme Court NT, Forster CJ, 25 July 1979) could be trained to assist in alleviating the effect of a disability, and would therefore justify recognition under s 9(1)(f) • in relation to dogs, which are commonly used as assistance animals, there are no restrictions on the breed of dog which the DD Act recognises. This could lead to dogs without the appropriate temperament for public access being trained as assistance animals for the purposes of s 9(1)(f) • the DD Act specifically requires the animal to be trained only to assist in alleviating the effect of a disability, not trained to be obedient, or well-behaved in public • there are no hygiene requirements nor health standards in relation to assistance animals, nor any requirement that the owner control the animal in s 9(1)(f) • the DD Act gives accredited training organisations no additional credence over animals trained otherwise, notwithstanding that accredited organisations such as those listed in the Guide Dogs Act 1972 (Qld) have community recognition and confidence. 175 Third, lack of clarity in the current legislation as to the nature of an assistance animal contributes to conflict between the owners of such animals and service providers, as has been demonstrated in this case. 176 Finally, and perhaps of most importance, is the fact that there is public confidence in and acceptance of the guide dog regime, which has more than 30 years recognition in State law in Queensland, and recognition throughout Australia and indeed the international community. It would be of concern if, because of the breadth of s 9(1)(f) and consequent legislative endorsement given to animals with lower community acceptance and trained to inferior and less exacting standards, the public confidence and acceptance of guide dogs were to be in any way undermined. It is perhaps unfortunate that the DD Act does not, like the Guide Dogs Act 1972 (Qld) or the Dog Control Act 1996 (NZ), define assistance animals by reference to accredited training organisations. This would provide certainty for animal owners, service providers and members of the public, and strike a balance between the needs of the disabled as recognised in the DD Act and the confidence of service providers and the public as to standards of assistance animals in public places. 177 At the hearing I indicated that I would provide my findings to the parties, and then seek submissions as to appropriate orders to make in these circumstances once the parties have had time to consider my reasons. Accordingly, I shall make orders as to the substantial issues in the proceedings, and make directions for another hearing to receive further submissions. THE COURT ORDERS THAT: In respect of QUD324/2005: 1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth). 2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a) , 23 (1)(b), 24 (1)(a) and 24 (1)(b) Disability Discrimination Act 1992 (Cth). In respect of QUD522/2005: 1. The respondent has discriminated against the applicant within the meaning of s 6 and s 9(1)(f) Disability Discrimination Act 1992 (Cth). 2. The conduct of the respondent was unlawful within the meaning of ss 23(1)(a) , 23 (1)(b), 24 (1)(a) and 24 (1)(b) Disability Discrimination Act 1992 (Cth). I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 June 2007 Counsel for the Applicant: D O'Gorman SC (Pro Bono) Solicitor for the Applicant: Miller Harris (Pro Bono) Counsel for the Respondent: C Murdoch Solicitor for the Respondent: Minter Ellison As Amicus Curiae J O'Brien for the Acting Disability Discrimination Commissioner Date of Hearing: 14 September 2006 Date of Judgment: 22 June 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/936.html


case_title: Green v Housing Authority of Clackamas County 994 F Supp 1253 (D Or 1998)


case_title: Grovenor v Eldridge [2000] FCA 1574

case_text: The applicant, respondent and the Commissioner each submitted that s 9 DD Act is a stand-alone provision, not referable to s 5 or s 6 DD Act . This is consistent with the decision of Stone J in Grovenor v Eldridge [2000] FCA 1574 where her Honour considered the issue of discrimination against a person with a guide dog in the context of s 9 alone. I also note the decision of McInnis FM in Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83 where his Honour adopted the same approach. 139 Section 23 has been considered in a number of cases previously before this Court. In Grovenor [2000] FCA 1574 , the applicant, who was visually impaired and accompanied by a guide dog, visited a furniture store in Young in New South Wales. On entering the store the applicant was told by the respondent, the owner of the store, to take the dog out. The respondent refused to accept the applicant's claim that she was visually impaired, and ordered her out of the store saying he did not care if the dog was a guide dog. HREOC heard the complaint and found that the respondent's conduct in that case was unlawful by reason of s 23(1)(a) DD Act in that the respondent had refused to allow the applicant access to the premises. The discrimination in that case was that the respondent had acted in breach of s 9(1)(d) , namely that the respondent had treated the applicant less favourably because of the fact that she was accompanied by a guide dog. On hearing an application to enforce the payment of $1,000 compensation ordered by HREOC, Stone J found that the applicant's evidence in the proceedings was unchallenged, that the conduct amounted to discrimination within the meaning of s 9 DD Act and was unlawful conduct within the meaning of s 23(1)(a) of the Act. Accordingly, her Honour ordered the respondent to pay the applicant damages in the amount of $1,000. 148 Third, I note the decision of Stone J in Grovenor [2000] FCA 1574 and her Honour's application of s 23(1)(a) in similar facts where denial of entry to a furniture shop by the proprietor was held to constitute a breach of s 23(1)(a) , and consider the facts of that case sufficiently analogous to this case to take the view that s 23(1)(a) is also applicable to the facts before me. I also note the decision of McInnis FM in Haar 184 ALR 83, and consider the reasoning of his Honour in that case correct.


case_text: The applicant, respondent and the Commissioner each submitted that s 9 DD Act is a stand-alone provision, not referable to s 5 or s 6 DD Act . This is consistent with the decision of Stone J in Grovenor v Eldridge [2000] FCA 1574 where her Honour considered the issue of discrimination against a person with a guide dog in the context of s 9 alone. I also note the decision of McInnis FM in Haar v Maldon Nominees Pty Ltd (2001) 184 ALR 83 where his Honour adopted the same approach. 144 I have also considered whether s 23(1)(b) is relevant in light of the written communications between the applicant and Cairns Base Hospital and Smithfield Community Health Centre, where the hospital and the centre informed the applicant of the respondent's policy of not allowing animals (other than guide dogs) into the hospital without a prior assessment by the respondent. Although the respondent ultimately refused to allow the applicant access to its premises with his dogs so as to enliven s 23(1)(a) , in my view s 23(1)(b) is also relevant because in discriminating against the applicant, the respondent had imposed terms or conditions upon which it was prepared to allow the applicant access to its premises. These facts may be compared with, and in my view are analogous to, Haar 184 ALR 83 where a person with a guide dog at a McDonald's restaurant was told that the next time she visited with the dog she should sit outside the "party" area of the restaurant as that area was frequented by children. McInnis FM considered that s 23(1)(b) applied, as the restaurant, in discriminating against the applicant in that case, had imposed conditions on which it was prepared to allow the applicant access to its premises in the company of her guide dog. 145 In relation to the application of s 23(1)(a) and (b) however, I note the oral submission of Mr Murdoch that the case is actually "about access to services " and not about access to premises . Following consideration of this issue however, I have formed the view that the issue of access to premises, and accordingly s 23(1)(a) and (b), is relevant. In this regard, I make the following observations. 146 First, the events which occurred at the premises of the respondent fall within the ordinary meaning of refusal of "access to premises". The applicant attended the premises of the respondent, and on the relevant occasions was requested to leave. At Cairns Base Hospital on 16 November 2004 he was escorted from the premises by security guards, and on three occasions at Smithfield Community Health Centre security guards were in place to ensure that the applicant did not enter the premises with his dogs. While the applicant may have attended the premises of the respondent, particularly Smithfield Community Health Centre, with a view to obtaining services, it is clear that the applicant was refused access to the premises because of the presence of his dog. He had received communications from the respondent indicating that it was prepared to allow him access to the premises with his dogs, but on the respondent's terms. To ignore the natural application of s 23(1)(a) and (b) to the facts of this case would be to do an injustice to the applicant. 147 Second, it is clear that the premises of the respondent in question were premises "that the public or a section of the public is entitled or allowed to enter or use" as contemplated by s 23(1)(a) and (b). The premises in question were public reception areas of Cairns Base Hospital and the Smithfield Community Health Centre, which were public areas of medical facilities provided to the public. 148 Third, I note the decision of Stone J in Grovenor [2000] FCA 1574 and her Honour's application of s 23(1)(a) in similar facts where denial of entry to a furniture shop by the proprietor was held to constitute a breach of s 23(1)(a) , and consider the facts of that case sufficiently analogous to this case to take the view that s 23(1)(a) is also applicable to the facts before me. I also note the decision of McInnis FM in Haar 184 ALR 83, and consider the reasoning of his Honour in that case correct.