case_text: The Act and particularly Part VAA has been described as 'public protective' legislation which should not be narrowly interpreted as the legislation has as its object the 'protection of the public' ( Health Insurance Commission and Ors v Grey [2002] FCAFC 130 ; (2002) 120 FCR 470 [173] and [179]). 16 This is the third occasion on which the applicant's proposal to amend his proceeding has come before the Court. The applicant initially sought to challenge the decision of the Authority by filing the Notice of Appeal of 8 May 2007. The grounds raised were these: 4.1 The applicant appeals against the findings of the Determining Authority of 5 April 2007 on the following grounds: 4.2 As a matter of law erred in reaching the conclusion that they did in fact make. 4.3 As a matter of law the conclusions reached was in error by failing to take into account relevant considerations. 4.4 As a matter of law erred in failing to take into account relevant considerations. 4.5 As a matter of law the penalty that was imposed was manifestly excessive. 17 Sections 11(1)(c) and 11(3)(a) required Dr Mitchelson file an application for an order of review not later than 28 days after receipt by him of a decision setting out findings on material questions of fact, references to the evidence supporting those findings and reasons for the decision. Dr Mitchelson was served with the decision material on Wednesday 11 April, 2007 by courier delivery to Karen O'Mullane, a legal representative from United Medical Protection now known as Avant Mutual Group Limited. Ms O'Mullane represented Dr Mitchelson before the PSR Committee. Mr Royds is informed by Dr Mitchelson and swears to a belief that the material was received by Dr Mitchelson on 15 April 2007. Accordingly, the 28 days provided for by the ADJR Act expired on either 9 May 2007 or 13 May 2007. The Notice of Appeal filed on 8 May 2007 was within time although entirely devoid of any proper formulation of the grounds of review or any material facts in support of those grounds.


case_outcome: cited

case_text: The overwhelming consideration however is whether the amended application as filed throws up, whether obfuscated or not, a basis for challenge to the decision of the Authority which ought fairly and properly to be entertained by the Court in the fulfilment of its ultimate aim of attaining justice between the parties to the controversy ( State of Queensland and Anor v JL Holdings Pty Ltd [1997] HCA 1 ; (1996) 141 ALR 353, per Dawson Gaudron and McHugh JJ). 26 What then does the proposed amendment contend for.


case_text: As to the composition of the Committee, the Director exercised a power conferred by the Act and constituted a committee made up of Dr Hirst, a medical practitioner and Deputy Director of Professional Services Review under the Act (s 85) and two general practitioners, Dr Marcela Cox and Dr Brian Morton appointed after consultation with the Australian Medical Association (s 84). There is no suggestion that there is a statutory obligation on the Director in exercising the power conferred by the Act in constituting a committee, to appoint a regional medical practitioner nor any want of power in constituting the committee as formed. There is no arguable denial of natural justice in these circumstances or a denial of procedural fairness made out ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-368 per Deane J and Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489-490, per Gleeson CJ). Mr Royds says that Tisdall v Kelly [2005] FCA 365 is authority for the proposition that a PSR Committee must include a medical practitioner from a regional area or a practitioner familiar with patients from the class or catchment from which the medical practitioner under review draws his or her patients. It seems to me that Tisdall is not authority for that proposition. 34 There is no contention that the Committee acted beyond power in adopting a sampling methodology nor that in doing so, s 106K(2) does not operate to bring about the result that the person is taken for the purposes of part VAA to have engaged in inappropriate practice in the provision of that proportion of the services in the class from which the sample was chosen. Nor is there a contention that the Committee acted beyond power in relying upon the advise and recommendations of Professor Nicholls, who advised that the sampling methodology adopted by the Committee for item 23 services is a statistically valid method (s 106K(4)). In addition, there is no challenge to reliance by the Committee upon the Health Insurance (Professional Services Review Sampling Methodology) determination 2000 (no. 1) in accordance with s 106K(3). In this case, the Committee has relied upon an express statutory power and acted within the limits of the power. Plainly enough, the Committee must act judicially in the sense that it must act in accordance with the requirements of procedural fairness or natural justice and not act arbitrarily, irrationally or unreasonably. It cannot be contended that the Committee has acted arbitrarily, irrationally or unreasonably by expressly acting in conformity with the statutory instrument. No doubt, that is why Deane J observed in Bond that the precise content of an obligation upon a tribunal or statutory body to observe the requirements of natural justice or procedural fairness varies 'according to the statutory framework of the particular proceedings' and 'that being so, the content of the obligation is not susceptible of precise definition' (366-367).


case_text: As to the composition of the Committee, the Director exercised a power conferred by the Act and constituted a committee made up of Dr Hirst, a medical practitioner and Deputy Director of Professional Services Review under the Act (s 85) and two general practitioners, Dr Marcela Cox and Dr Brian Morton appointed after consultation with the Australian Medical Association (s 84). There is no suggestion that there is a statutory obligation on the Director in exercising the power conferred by the Act in constituting a committee, to appoint a regional medical practitioner nor any want of power in constituting the committee as formed. There is no arguable denial of natural justice in these circumstances or a denial of procedural fairness made out ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 365-368 per Deane J and Plaintiff s 157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 489-490, per Gleeson CJ). Mr Royds says that Tisdall v Kelly [2005] FCA 365 is authority for the proposition that a PSR Committee must include a medical practitioner from a regional area or a practitioner familiar with patients from the class or catchment from which the medical practitioner under review draws his or her patients. It seems to me that Tisdall is not authority for that proposition.


case_title: Tisdall v Kelly [2005] FCA 365


case_text: The Amended Application seeks review of the decision of the Authority of 5 April 2007 to make 'directions' as a decision of an administrative character made under an enactment for the purposes of the ADJR Act. The Amended Application is in these terms: The applicant is aggrieved by the decision because 1. That the Applicant was denied natural justice. 2. The Professional Services Review Committee did not properly apply the principles identified in Briginshaw v- Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 in reaching its findings. The grounds of the application are 1. The Applicant was denied natural justice in that the determining authority acted upon the draft report of a Professional Services Review Committee which was comprised of metropolitan practitioners. 2. The Professional Services Review Committee should have had a regional practitioner experienced in the issues which face regional practitioners, particularly catering for a high number of patients from a lower socio economic group. 3. The Professional Services Review Committee relied upon a sample of 30 cases out of a total of 7,499 cases. This figure represents 0.4% of the class size, the Professional Services Review Committee has not applied the Briginshaw principle correctly in that a larger sample should have been assessed. 4. The Professional Services Review Committee acted upon inexact proof. 5. The gravity of the consequences which flowed from the Professional Services Review Committee's findings were such that a higher level of proof was required. 6. The Professional Services Review Committee did not consult with any of the patients the subject of the 30 cases to ascertain whether they were satisfied with their treatment or whether they disputed the duration of time the applicant claimed to spend with each. 7. That in applying the Briginshaw principles the Professional Services Review Committee should have considered the nature of the client base the applicant was working with and the limited number of Bulk billing practices in regional centres. 6 The background to the decision of the Authority is this. 7 On 6 December 2004 a request was made under the Act by the Health Insurance Commission ('the Commission') of the Director of Professional Services Review to review the provision of services by Dr Mitchelson during the period specified in the request (ss 83 and 86 of the Act) and to consider whether Dr Mitchelson's conduct amounted to 'inappropriate practice' for the purposes of the Act. On 22 July 2006, the Director, under Division 3A of Part VAA of the Act (s 93) elected to establish a PSR Committee and make a referral to that committee to investigate whether Dr Mitchelson had engaged in inappropriate practice in providing services described as Item 23 and Item 36 services. PSR Committee 445 was established under s 95 of the Act. Section 95 sets out the requirements to be satisfied by the Director in exercising the power conferred by s 93 and provides: 95 Constitution of Committees (1) A Committee set up under section 93 in connection with a referral consists of the following members appointed by the Director: (a) a Chairperson who is a Deputy Director; and (b) 2 other Panel member; and (c) if subsection (6) applies not more than 2 additional Panel members. (1A) ... (2) If the person under review is the practitioner who rendered or initiated all of the referred services the Chairperson, and the other Panel members referred to in paragraph (1)(b), must be practitioners who belong to the profession in which the practitioner was practising when the services were rendered or initiated. (3) If the practitioner was at that time a consultant physician in relation to a particular specialty, the Panel members referred to in paragraph (1)(b) must also be consulting physicians in relation to that specialty. (4) If the practitioner was at that time a specialist in relation to a particular specialty, the other Panel members referred to in paragraph (1)(b) must also be specialists in relation to that specialty. (5) If the practitioner was at that time a general practitioner, the other Panel members referred to in paragraph (1)(b) must also be general practitioners. (6) The Director may appoint an additional Panel member or additional Panel members referred to in paragraph (1)(c) if the Director thinks it is desirable to do so in order to give the Committee a wider range of clinical expertise, having regard to the services specified in the referral. (7) An additional Panel member must be a member of a profession or a specialty relevant to a field of practice of the practitioner, or any of the practitioners, who rendered or initiated the referred services. (8) Any Panel member whom the Director consulted under section 90 in relation to the referral must not be appointed as a member of the Committee. 27 Dr Mitchelson is said to be aggrieved by the Authority's decision first because he was 'denied natural justice' and secondly, the PSR Committee did not apply the principles of Briginshaw v Briginshaw in reaching its findings. Dr Mitchelson is an 'aggrieved person' because of the effect upon him of the decision. The above two contentions are a statement of the grounds on which an order of review of the decision is sought. Section 5(1)(a) of the ADJR Act provides as a ground of challenge that 'a breach of the rules of natural justice occurred in connection with the making of the decision' and s 5(1)(f) provides a further ground that 'the decision involved an error of law, whether or not the error appears on the record of the decision'. Mr Royds says the Briginshaw point is reliant upon the s 5(1)(f) ground. 28 As to natural justice ground, paragraphs 1, 2 and 3 of the 'grounds of the application' make two points. First, the Authority relied upon a report of the PSR Committee. That committee was constituted by three doctors who each practice in a metropolitan area The PSR Committee should, it is said, have consisted of a committee one of whom at least was a regional practitioner familiar with the provision of services to patients of a 'lower socio-economic group'. Because it did not, Dr Mitchelson was denied natural justice. Dr Mitchelson does not identify the precise content of the natural justice rule said to be breached. When put to Mr Royds that Dr Mitchelson seems to be relying on the fair hearing rule, Mr Royds agreed. 29 Although it is not put this way, the contention seems to be that Dr Mitchelson was denied 'fairness' in a proper assessment of the facts; and the formulation of a fair draft and final report of the Committee was rendered illusory due to the composition of the Committee, which, in turn, poisoned the decision of the Authority. 35 Grounds 3, 4, 5, 6 and 7 of the proposed amended application all, in one way or another, rely upon the application of the principle derived from Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. 36 The content of the Briginshaw point at paragraphs 4, 5, 6 and 7 of the amended document is this. The PSR Committee acted on inexact proof; the gravity of the consequences flowing from the PSR Committee's findings required a higher level of proof; the PSR Committee did not consult with any of the patients within the sample group; and the PSR Committee ought to have considered the nature of the client base of Dr Mitchelson and the limited number of bulk billing practices in regional centres. 37 The PSR Committee was established to 'investigate whether Dr Mitchelson engaged in appropriate practice in providing the 'Referred Services'' and whether Dr Mitchelson may have: • 'failed to provide appropriate professional services to his patients; • failed to satisfy the requirements of the relevant items in the MBS; • failed to provide adequate clinical input into the services; • provided services that were not necessary and/or not clinically relevant; • kept records that were deficient in the essential clinical information' (Final report PSR Committee no.445) 38 Subdivision B of Part VAA of the Act provides for 'Proceedings of Committees'. The chairperson is to convene meetings of the committee (s 97). The committee may regulate the proceedings of its meetings as it thinks fit (s 98(1)). For the purposes of its enquiry, the committee may inform itself in any manner it thinks fit (s 98(3)). A question arising at a meeting is decided by a majority of votes of members present and voting (s 99(4)). The committee must hold a hearing if it appears to the committee that the person under review may have engaged in inappropriate practice in providing the referred services (s 101(2)). The person under review is entitled, subject to any reasonable limitations or restrictions the committee may impose, to attend the hearing; be accompanied by a lawyer or other advisor; call witnesses to give evidence; produce written statements going to character; question persons giving evidence at the hearing; address the committee on questions of law during the hearing; and after the conclusion of the taking of evidence, make a final address to the committee on questions of law, the conduct of the hearing and the merits of the matters to which the hearing relates (s 103). The committee has power to require the production of relevant documents (s 105A). 45 The statutory role of the committee is investigative. It makes findings to be relied upon by the Authority in making draft and final determinations containing one or more of the directions contemplated by s 106U which include repayment to the Commonwealth of the whole or part of a medical benefit paid for a service or class of services where inappropriate practice has been found and suspension for a period and/or disqualification for a period from the provision of services to which medical benefits relate. The Briginshaw point seems to be that in relying on the composition and size of the sample selected and in failing to consult with patients, the proof of matters going to 'inappropriate practice' was inexact and failed to attain the standard of proof a committee acting reasonably in the conduct of its proceedings ought to adopt having regard to the gravity of the possible s 106U directions. 46 The statute expressly provides that the committee in discharging its investigative function may 'have regard only to a sample of the services' in a class of services where reliance on a sample is for the very purpose of testing 'inappropriate practice' leading to findings likely to lead to one or more of the serious s 106U directions by the Authority. 47 The sampling methodology adopted by the committee might be that contained in a ministerial determination specifying the content and form of sampling methodologies that may be used (s 106K(3)); or a nonspecified methodology 'if but only if' shown on advice to the committee to be statistically valid, by an accredited statistician. 48 Since the Committee has acted in conformity with the Act by having regard only to a sample within the statutory constraints upon the methodology to be used (and no contention to the contrary is made) the question is whether any Briginshaw principle is engaged. Should the Committee have selected a method of fact finding other than by sampling the services? 49 The committee must act reasonably . In order to be satisfied that Dr Mitchelson engaged in 'inappropriate practice' the committee needs to reach a state of affirmative satisfaction of the foundation factual matters giving rise to that conclusion to a standard of 'reasonable satisfaction'. A member, acting reasonably, will not be so satisfied 'independently of the nature and consequence of the fact or facts to be proved' ( Briginshaw , per Dixon J at 362). The seriousness of the allegation or the gravity of the consequences flowing from a particular finding must necessarily affect the judgment made by each committee member as to whether the particular issue has been established to that member's reasonable satisfaction. As Sir Owen Dixon observed, reasonable satisfaction should not be reached by 'inexact proofs, indefinite testimony or indirect inferences' (p, 362). Plainly enough, the nature of the issue before the tribunal 'necessarily affects the process by which reasonable satisfaction is attained' (Dixon J per 363). 50 The proposed amended application simply asserts a conclusion of reliance upon inexact proof and thus, inferentially, a failure on the part of committee members to be reasonably satisfied of the relevant matters. The difficulty with that bald conclusionary assertion is that the Committee acted in conformity with the Act in circumstances where the sampling methodology was the subject of advice from an expert, Professor Nicholls, of statistical validity. Prima facie the Committee acted reasonably in conducting its investigation. No attempt has been made by Dr Mitchelson to isolate the process of reasoning in respect of any of the various sample services and demonstrate any failure on the part of the Committee. There is no reference to factual material from which 'inferences' were drawn incorrectly nor reference to 'indefinite testimony' or 'inexactness' in any of the analyses of the sample services. 51 As a result, the proposed amended application fails to identify a ground of challenge supported by material facts going to a ground of challenge.


case_title: Spotwire Pty Ltd v Visa International services Inc (2003) ATPR 41-949

case_text: I am satisfied that the claims made by the applicant as formulated by the proposed amended application cannot succeed and are bound to fail in the sense identified by Bennett J in Spotwire Pty Ltd v Visa International Services Inc (2003) ATPR 41-949 at 47, 410. Accordingly, it would be futile to grant leave to amend in terms of the proposed document. I refuse leave to amend and dismiss the applicant's notice of motion filed on 12 September 2007. 62 I have given consideration to this difficulty. I am not sure whether the failure to formulate a ground of challenge supported by material facts is a function of delay by Mr Royds or for that matter Mr Royds and Dr Mitchelson. I am satisfied that Mr Royds does not appreciate the need to comply with a time limitation contained in the principal legislation nor the need to file and serve a properly formulated document identifying arguable grounds supported by material facts rather than simply filing anything. Nor, apparently, is there an appreciation of a need to comply with orders of the court.


case_text: Having regard to the lengthy period of time afforded to Dr Mitchelson to properly formulate an application which raises an arguable ground of challenge to the Committee's decision supported by material facts, the failure to comply with Court orders and the statutory objective of the legislation to protect the public interest and the discretionary nature of the relief ( Lamb v Moss (1983) 49 ALR 533, (1983) 76 FLR 296, (1983) 5 ALD 446; Seymour v Attorney-General (Cth) (1984) 4 FCR 498; Kamba v Australian Prudential Regulation Authority [2007] FCA 1422 (13 September 2007) at [8]), I propose to refuse leave to amend and dismiss the notice of appeal filed by Dr Mitchelson on 8 May 2007.


case_title: Seymour v Attorney-General (Cth) (1984) 4 FCR 498


case_title: Kamba v Australian Prudential Regulation Authority [2007] FCA 1422


case_text: It cannot, in my opinion, be the position that, where an applicant has multiple purposes for engaging in conduct in Australia, no matter how relatively unimportant the s 91R(3) purpose may be, its existence will prevent the decision-maker from having regard to it. In a different context, this result might be avoided by a familiar technique of statutory construction: construing "the purpose" to mean "the real and substantial purpose": see eg. District Council of Coober Pedy v Collector of Customs [1993] FCA 187 ; (1993) 42 FCR 127. However such a simple solution would still leave problems. 33 An example prompted by current events may make this clear. Suppose that a Tibetan claiming refugee status here is asked by a friend to participate in a public protest against China's alleged maltreatment of Tibetan dissidents who include friends of his. Suppose his main purpose is to express his genuine outrage and to try to send a message to the Chinese government; suppose that he has another purpose, namely to have his protest photographed and sent back to dissident elements in Tibet in order to encourage them; suppose further that he also intends to use photographs thus taken to support his application for a protection visa but that he already possesses abundant, incontrovertible evidence of participating in similar protests outside Australia, so that, as he perceives matters, the intended photographs will be, as it were, merely the icing on the cake. Nevertheless, assume that supporting his refugee claim is a real and substantial purpose of his, albeit a relatively quite minor one. Suppose finally that before he can deliver his other, incontrovertible evidence to the Tribunal he loses it and cannot replicate it. It would, in my view, clearly be unfair by ordinary standards to prevent him from using the sur place evidence, and absent the clearest statutory language such an unfair result should not be imputed to be Parliament's intention.


case_text: True it is that the example may be extreme and that hard cases can make bad law. True it is also that s 417 provides, at least in theory, a means for dealing with such hard cases (though its practical application seems in recent years to have been uncertain, and a parliamentary preference for the fiat of the Minister over a process that includes recourse to an independent tribunal should not readily be inferred). Nevertheless, the background to the enactment of s 91R(3) was the practice that arose of refugee status applicants participating in demonstrations of protest against the governments of their countries of nationality with the sole or at least dominant purpose of manufacturing evidence for their applications. Decisions of this Court may unintentionally have encouraged this practice, see eg Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 ; (2000) 98 FCR 405. Such at least was the Minister's view in his Second Reading speech. He said: I am also concerned about court decisions that have recognised the claims of applicants who have deliberately set out to contrive claims for refugee status after they have arrived in Australia. Such action, deliberately seeking to attract hostile attention from a home country government, makes a mockery of an applicant having a real fear of persecution. The legislation will make it clear that any actions by a person taken after arrival in Australia will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection. The convention was not intended to provide protection to applicants who contrive claims in second or third countries and who have no other basis for claims to refugee status. However, in exceptional cases where a person has acted purely to strengthen their claims, and so as a result needs some protection, my ministerial intervention powers will allow me to intervene if it is in the public interest. (Emphasis added.) 35 In my opinion the problem referred to can be adequately overcome, and the real mischief that concerned the legislation's framers met, by interpreting "the purpose" as meaning "the dominant purpose". The Second Reading speech gives a sharper account of the mischief the subsection was aimed at than the Explanatory Memorandum and it supports the approach I favour. The context generally speaks against giving the statute an over-literal interpretation. There is some textual, as well as contextual, support in the statute for such an approach. The statutory test is whether the person concerned "engaged in the conduct otherwise than for the purpose of strengthening" his or her claim to refugee status. The use of the word "the" rather than "a" suggests that there will be a single purpose that can be regarded as "the" purpose. In a real world where behaviour commonly has multiple motivations and purposes, to fulfil the statutory notion it would be sufficient to read "purpose" in the way I propose (but also in no lesser way). That is obviously not to say, as the appellant would have it, that wherever there are multiple purposes, no matter how strong the purpose of simply aiding one's case, s 91R(3) will not apply. I therefore think that the draconian construction favoured in the court below was erroneous. 36 That error, however, does not in my opinion avail the appellant. In the first place, while his Honour may have erred, it is by no means clear to me that the Tribunal did so. 37 Secondly, as the respondent points out, the Tribunal affirmatively found that it was "not satisfied that the applicant engaged in [the relevant] conduct ... otherwise than for the purpose of strengthening his refugee claims" (emphasis added). That is, s 91R(3) , construed as I conceive that it should be, would still require that conduct to be disregarded. In the necessary exercise of discretion as to whether a constitutional writ should go, I would for that reason decline the relief sought. 38 Again, on a correct understanding of the Tribunal Member's reasons and findings, if there were any error by the Tribunal in understanding s 91R(3) it was, in my opinion, quite immaterial here.


case_text: The Tribunal member was clearly alive to the distinction between religious activity (or conduct) and the belief which allegedly motivated it. The Tribunal spoke, for example, of whether, "leaving aside his conduct", the appellant had "a genuine and sustained interest" in higher order religious practice. (That is so despite what may be the Tribunal's slightly confusing or ambiguous use of the term "role" as distinguished from conduct I think the Tribunal was using "role" to indicate the perception of him that others would have.) The distinction between motivation or belief on the one hand and "conduct" on the other has been noticed in this Court: see Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 at [16] per Gray J and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [91] - [96] per Young J.


case_outcome: approved

case_text: The appellant submits that the Tribunal erred in so doing. Once the Tribunal held that the conduct in question was to be disregarded due to s 91R(3) , it had to disregard that conduct for all aspects of its decision. The appellant relies on two authorities to support his construction of s 91R(3) , both decisions of Driver FM: SZHAY v Minister for Immigration [2006] FMCA 261 and SZJSD v Minister for Immigration [2007] FMCA 604. 40 I agree with the respondent's analysis that the Tribunal rejected the appellant's sur place motivations and beliefs, but did not have relevant regard to his conduct, as an indicator of a likely "higher profile" if returned to China than he previously had there (on the Tribunal's findings). I accept, as the respondent seems to have done sub silentio , that Driver FM's point in SZHAY [2006] FMCA 261 and SZJSD [2007] FMCA 604 is correct: the word "disregard" in the subsection admits of no ambiguity. For the reasons given, however, there was no breach by the Tribunal of that statutory injunction. If, contrary to my view and that of the other judges I have referred to, sur place "conduct" in s 91R(3) should be regarded as including ideas and beliefs motivating the conduct, the only infraction of the subsection by the Tribunal was in looking at such ideation with a view to considering whether it might assist the appellant in relation to his likely future conduct if returned to China, and coming to a negative conclusion. It is very plain that, had no such regard been had to that ideation, the appellant's application was in any case doomed to failure. Again therefore, any error was immaterial, did not taint the decision and would not result in the issue of writs.


case_title: SZJSD v Minister for Immigration [2007] FMCA 604


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


case_text: A failure to comply with s 424A amounts to jurisdictional error: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183 per McHugh J, at 203 per Kirby J and at 211 per Hayne J. 20 As set out in the amended notice of appeal, the appellant relied on two grounds. The first ground arose under s 424A and had two limbs (1) Ms Meehan's letter; and (2) the appellant's initial statement regarding his office in the YWA. The second ground related to the Tribunal's failure to make inquiries about Ms Meehan's qualifications. 21 The appellant submitted that the fact that Ms Meehan failed to specify her qualifications constituted a part of the reason for the Tribunal's decision for affirming the delegate's decision and, thus, s 424A(1) of the Act applied. This submission gives rise to the question, first, whether the Tribunal's knowledge of the fact that Ms Meehan's letter did not contain a statement of her qualifications amounted to "information" for the purposes of s 424A(1). If it did, there is a further question as to whether this was information that the Tribunal considered "would be the reason, or a part of the reason" for affirming the decision under review.


case_outcome: referred to

case_text: This Court has discussed what is intended by the term "information" in s 424A on a number of occasions. As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477: [T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (i ) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-218 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] . The Court substantially accepted this approach in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "): compare SZEEU at 226-228 per Moore J, at 252 and 254 per Weinberg J and at 259-260 per Allsop J.


case_text: This Court has discussed what is intended by the term "information" in s 424A on a number of occasions. As Finn and Stone JJ said in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 476-477: [T] here is now a considerable body of case law concerned with the compass of the term 'information' in its s 424A(1) setting. The following propositions emerge from it: (i ) the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 429-30 [104] ; [2001] FCA 1196 ; 64 ALD 289 at 318. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; BC200301782; (ii) the word 'information' in s 424A(1) has the same meaning as in s 424: Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 ; (2001) 105 FCR 212 at 218 [20] ; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 ; BC200004607 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win , at 217-218 [19]-[22]; and (iii) the word does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at FCR 428 [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 ; BC200107472 at [25]; approved [2002] FCAFC 120 ; BC200203793; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at 282-4 [26] - [29] . The Court substantially accepted this approach in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 (" SZEEU "): compare SZEEU at 226-228 per Moore J, at 252 and 254 per Weinberg J and at 259-260 per Allsop J. 24 Accordingly, I accept that, for present purposes, "information" does not encompass the Tribunal's appraisals or thought processes, although the Tribunal's appraisals and thought processes may show the relevance of the information in question and indicate what is required for compliance with s 424A(1). It follows that information is not constituted by what the Tribunal considers to be defects in evidence or a lack of evidentiary specificity. Secondly, information may have relevance for any number of reasons: compare SZEEU at 263 per Allsop J. 25 I accept that the Tribunal's knowledge of the letter was "information" for the purposes of s 424A(1). The contents of the letter included statements about the appellant and about the letter-writer. The information was, relevantly, the knowledge that the letter communicated to the Tribunal. 26 The Tribunal gave no weight to the statements in the letter about the appellant's psychological condition because the letter did not communicate enough about the letter-writer's qualifications. According to its reasons, the Tribunal's determination about the importance of the letter to its review was the product of its evaluation of the significance of this deficiency. As already noted, whilst the Tribunal's thought processes (including appraisals and evaluations) are not "information", they show why the information that they concern (here, the letter) was relevant for s 424A(1) purposes. 33 Obligations arise under s 424A(1) in respect of information that the Tribunal considers would be a part of the reason for affirming the decision under review. In the present case, for the reasons already noted, the letter played a part in the Tribunal's reasons for its decision, even if only a subsidiary part. Notwithstanding that a piece of information constitutes only a minor or subsidiary part of the Tribunal's reasons, s 424A is attracted: see SZEEU at 252 per Weinberg J and at 262 per Allsop J; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (" NBKT ") at [31] per Young J, with whom Gyles and Stone JJ agreed. The Tribunal considered the letter in the form it took, and put the statements about the appellant's psychological condition, which it contained, out of reckoning because the letter did not state the letter-writer's clinical qualifications. The adverse credibility finding, made after the Tribunal had put this letter out of account, was central to the Tribunal's decision. The fact that the Tribunal's reasoning did not proceed in a straight-line way is immaterial. Weinberg J explained in SZEEU at 253 that: The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 43 In other cases, the Tribunal has asked the applicant about such information, which it has generally found in the Department's file in the Tribunal's possession. In cases of this kind, the Court has adopted no fixed view about the application of the exception. On some occasions, it has found that s 424A(3)(b) does not apply, because the applicant was not to be taken as having given the information to the Tribunal for the purposes of the review application: see, for example, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39] - [42] per Jacobson J. In SZBMI , which appeal is reported with SZEEU , the applicant confirmed with the Tribunal that an earlier statement as to flight information was true and correct. This led the respondent to argue that the appellant in that case had adopted the flight information and given it to the Tribunal for the purposes of its review. Moore J, at 225, specifically rejected this submission, commenting: I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate. 44 Weinberg J agreed with Moore J that the adoption of the earlier statement by the appellant during the hearing before the Tribunal did not render it information provided by him in his application for review: see SZEEU at 252. Allsop J did not consider the operation of the exception in s 424A(3)(b) in this context. 45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.


case_text: Obligations arise under s 424A(1) in respect of information that the Tribunal considers would be a part of the reason for affirming the decision under review. In the present case, for the reasons already noted, the letter played a part in the Tribunal's reasons for its decision, even if only a subsidiary part. Notwithstanding that a piece of information constitutes only a minor or subsidiary part of the Tribunal's reasons, s 424A is attracted: see SZEEU at 252 per Weinberg J and at 262 per Allsop J; and NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 (" NBKT ") at [31] per Young J, with whom Gyles and Stone JJ agreed. The Tribunal considered the letter in the form it took, and put the statements about the appellant's psychological condition, which it contained, out of reckoning because the letter did not state the letter-writer's clinical qualifications. The adverse credibility finding, made after the Tribunal had put this letter out of account, was central to the Tribunal's decision. The fact that the Tribunal's reasoning did not proceed in a straight-line way is immaterial. Weinberg J explained in SZEEU at 253 that: The actual process by which a decision is reached is, of course, a complex matter. It is not always as neat as the reasons themselves may suggest. The reasoning may not proceed in a linear fashion, and the Tribunal's reasons must, of course, be read as a whole. 45 As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J. 46 The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.


case_text: The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply.


case_title: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271


case_text: The parties referred to numerous decisions in which an issue of this kind arose. In some of these cases, the applicant expressly advanced information that had been initially given to the Department as part of the case on review to the Tribunal: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1271 at [11] per Merkel J; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 (" SZGGT ") at [24] and [50] per Rares J; SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451 at [37] per Graham J; VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at 312 per Heerey J; and SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538 at [12] per Bennett J. In these cases, s 424A(3)(b) was held to apply. 46 The question whether an applicant gave an item of information for the purposes of his or her review application must be answered by reference to the particular facts of the case. As Rares J said in SZGGT at [36] and [50], these facts must be considered objectively. The nature of the information is also relevant to this inquiry: see NBKT at [59] per Young J. For example, if the Tribunal puts a specific piece of factual information to the applicant in the course of the hearing and the applicant affirms that it is true, then the conclusion may readily be reached that the applicant has given this information to the Tribunal for the purposes of the review.


case_title: SZCKD v Minster for Immigration and Multicultural and Indigenous Affairs [2006] FCA 451


case_title: VBWF v Minister for Immigration and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302


case_title: SZCBQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1538


case_text: In other cases, the Tribunal has asked the applicant about such information, which it has generally found in the Department's file in the Tribunal's possession. In cases of this kind, the Court has adopted no fixed view about the application of the exception. On some occasions, it has found that s 424A(3)(b) does not apply, because the applicant was not to be taken as having given the information to the Tribunal for the purposes of the review application: see, for example, NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 at [39] - [42] per Jacobson J. In SZBMI , which appeal is reported with SZEEU , the applicant confirmed with the Tribunal that an earlier statement as to flight information was true and correct. This led the respondent to argue that the appellant in that case had adopted the flight information and given it to the Tribunal for the purposes of its review. Moore J, at 225, specifically rejected this submission, commenting: I do not accept that, by adopting the statement at the hearing before the Tribunal, that information was transformed into information provided by the appellant in his application for review. In my opinion, the approach of Jacobson J in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs was correct. If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.


case_text: As Young J noted in NBKT at [55], the Full Court's approach in SZEEU to issues of this kind must also take into account its treatment of a similar question in the appeal in SZDXA , also reported with SZEEU . The relevant information in SZDXA was the fact that the appellant had a temporary business visa to Australia. Moore J concluded that, although the Tribunal had acquired this information from sources other than the appellant, the Tribunal had discussed the fact with the appellant at the hearing and the appellant had affirmed that he had entered Australia on a business visa. In this circumstance, Moore J concluded, at 242, that the information fell within 424A(3)(b) and Weinberg J agreed, at 254, observing, at 255, that the adoption of an earlier statement at the hearing can bring that statement within the exception. Allsop J agreed, at 268, with Moore J in relation to SZDXA . The Full Court in NBKT reached a similar conclusion in relation to the information in question in that case: see NBKT at [60]-[63] per Young J. See also SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 at [43] per Heerey J; and SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] per Kenny J.


case_title: SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627


case_text: At the hearing of the appeal, the appellant amended his notice of appeal in order to support an argument that there was a third instance of jurisdictional error in that the Tribunal acted unreasonably, in the sense mentioned in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, when it failed to enquire (as it might have done under ss 424 and 427 ) about Ms Meehan's qualifications to express an opinion about the appellant's psychological state. In this connection, the appellant referred to Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 119 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 50 per Davies, Wilcox and Pincus JJ; Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179 at 192 per Foster J; Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209; M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 ; and Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24 at 40-43 per Gray, North and Mansfield JJ. An affidavit sworn on 13 February 2007 by Kelly Louise Hughes, a solicitor in the employ of Mallesons Stephen Jaques, pro bono solicitors for the appellant, indicated that the Tribunal would have had little difficulty in ascertaining Ms Meehan's qualifications had it made a straightforward inquiry. Having regard, however, to the conclusions reached above with respect to the appellant's primary grounds of appeal, it is unnecessary to consider this ground and I do not do so. The argument was not advanced before the learned Federal Magistrate.


case_title: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155


case_title: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71


case_title: Luu v Renevier (1989) 91 ALR 39


case_title: Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179


case_title: Re Minister for Immigration and Multicultural Affairs; ex parte Cassim [2000] HCA 50 ; (2000) 175 ALR 209


case_title: M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16


case_title: Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 ; (2002) 127 FCR 24


case_text: Then in 1975 the House of Lords in American-Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 considered the principles in relation to the grant of an interlocutory injunction restraining infringement of a patent. The first inquiry was whether there was a serious question to be tried described in terms that seemed to set the bar fairly low. Again, the refusal of a lower court to grant an injunction was reversed.


case_outcome: followed

case_text: Counsel for GenRx also submits that the authority of Beecham Group [1968] HCA 1 ; 118 CLR 618 has been fully restored by the decision of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, particularly per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] [72]. However, this reaffirmation of Beecham Group [1968] HCA 1 ; 118 CLR 618 lies in the explanation of what is involved in establishing a prima facie case rather than any consideration of the application of the principles to patent infringement. It would be surprising if Gummow J had joined in an exercise which would effectively overrule Martin Engineering 81 ALR 543 without any acknowledgement of that. I propose to direct myself in accordance with Beecham Group [1968] HCA 1 ; 118 CLR 618 as it is explained by both Martin Engineering 81 ALR 543 and O'Neill 227 CLR 57.


case_text: What is the general approach to the grant of an interlocutory injunction to restrain the infringement of a patent? In Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 the High Court laid down this approach to the grant of an interlocutory injunction there are two inquiries: the first is whether the plaintiff has made out a prima facie case in the sense outlined, and the second is as to the balance of convenience. That case also happened to be a patent case. However it was, as the High Court said (118 CLR at 623 624): "not complicated by the special considerations which generally arise in a patent action where there is a substantial issue to be tried as to the validity of the patent. In such an action the plaintiff's prima facie case must be a strong one so far as the question of validity is concerned, for he asserts a monopoly and must give more proof of the right he claims than as afforded by the mere granting of the patent ... The general practice in that kind of case has long been to refuse an interlocutory injunction unless either the patent has already been judicially held to be valid or it has stood unchallenged for a long period". In the result, the decision of McTiernan J to decline an interlocutory injunction was reversed. 4 There was much discussion occasioned by the apparent difference in approach between those two decisions. The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group [1968] HCA 1 ; 118 CLR 618 for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group [1968] HCA 1 ; 118 CLR 618. 6 Counsel for GenRx also submits that the authority of Beecham Group [1968] HCA 1 ; 118 CLR 618 has been fully restored by the decision of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, particularly per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] [72]. However, this reaffirmation of Beecham Group [1968] HCA 1 ; 118 CLR 618 lies in the explanation of what is involved in establishing a prima facie case rather than any consideration of the application of the principles to patent infringement. It would be surprising if Gummow J had joined in an exercise which would effectively overrule Martin Engineering 81 ALR 543 without any acknowledgement of that. I propose to direct myself in accordance with Beecham Group [1968] HCA 1 ; 118 CLR 618 as it is explained by both Martin Engineering 81 ALR 543 and O'Neill 227 CLR 57.


case_text: I am satisfied that there is a substantial issue to be tried as to the validity of the patent on the ground that the claims of the patent are not novel over the first Canadian patent. I do not agree that that issue can be simply disposed of by reference to the decision of the House of Lords in EI Du Pont De Nemours & Co (Witsiepe's) Application [1982] FSR 303, at least not without much closer examination of the issue than is appropriate on an interlocutory application. At the very least, the statement in the Canadian specification "the invention also concerns each of the enantiomers and their mixture", the formula for the compound example 1, and the statements in claim 1 "as well as the 2 enantiomers or their mixture of these compounds of formula (I)" and "and, if desired, its enantiomers are separated and/or it is salified by mineral or organic acid action", give substance to the claim of invalidity by GenRx. It is not necessary to consider other points of invalidity that will arise on the hearing. 9 However, in my opinion, the combination of the longstanding existence and exploitation of the patent in suit together with the failure of GenRx to bring revocation proceedings in a timely fashion are factors pointing to the appropriateness of the grant of an injunction. The survival of similar patents from challenge in proceedings in both Canada and the United States points in the same direction, although not too much can be made of this because it is at least arguable that the approach of the courts in those places differs from the approach of the courts in Australia and there are differences in the framing of the patent, particularly in the United States. 10 The chronology is as follows: • 7 July 1983: Sanofi's application for the original patent duly granted in Australia on that application; • 7 November 1985: Publication of the corresponding first Canadian patent in Australia; • 4 February 1988: Patent in suit filed in Australia; • 7 June 1990: Patent in suit granted; • 1 January 1997: Partnership agreement between a Sanofi entity and a Bristol-Myers Squibb entity for the exploitation of the patent whereby clopidogrel is marketed in Australia under two brands Pravix marketed by the Sanofi entity and Iscover marketed by the Bristol-Myers Squibb entity; • 21 March 2002: US proceedings commenced; • 10 March 2003: Canadian notice of allegation; • 7 July 2003: The expiry of first Australian patent; • November 2003: Incorporation of GenRx. Prior to November 2003 GenRx business an unincorporated unit of Faulding and then Mayne; • 20 January 2004: Proceedings commenced in the Korean Intellectual Property Tribunal; • 28 April 2004: Canadian proceedings commenced; • 1 July 2004: GenRx acquired by Apotex Australia Pty Ltd which in turn is a wholly owned subsidiary of Apotex Inc of Canada; • 27 June 2006: GenRx submits bioequivalents and bioavailability data for its clopidogrel 75 mg (as hydrogen sulphate) tablets to the Secretary, Commonwealth Department of Health and Ageing; • 30 June 2006: Date of expiration of data exclusivity period; • 16 August 2007: Application for revocation filed by GenRx; • 17 August 2007: GenRx obtained registration of clopidogrel 75 mg tablets; • 17 August 2007: GenRx advised Sanofi of filing of application for revocation. • 4 February 2013: Expiry of patent in suit.


case_text: Counsel for GenRx submits that that analysis is weakened, if not eliminated, by the type of examination prior to grant discussed in F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 50 IPR 305 especially at [48] [57]. In my opinion, that decision is controversial. Even if correct, however, it does not detract from the proposition that the Commissioner is charged with the responsibility of examining the validity of a patent before grant, including any relevant question of anticipation or lack of novelty.


case_outcome: applied

case_text: There was much discussion occasioned by the apparent difference in approach between those two decisions. The most influential consideration of the issue in relation to patents was that by Gummow J in Martin Engineering Co v Trison Holdings Pty Ltd (1988) 81 ALR 543. In the course of that judgment his Honour pointed out that the authorities referred to by the High Court in Beecham Group [1968] HCA 1 ; 118 CLR 618 for not attributing great significance to the grant of a patent were old cases from England based upon a different system for grant than that which had developed in Australia by that time. The system of examination of patents prior to grant in Australia was more stringent than had been the case in England the century before. The practical effect of this decision was to give greater weight to the grant of a patent thereafter than might have been deduced from Beecham Group [1968] HCA 1 ; 118 CLR 618. 6 Counsel for GenRx also submits that the authority of Beecham Group [1968] HCA 1 ; 118 CLR 618 has been fully restored by the decision of the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57, particularly per Gleeson CJ and Crennan J at [19] and Gummow and Hayne JJ at [65] [72]. However, this reaffirmation of Beecham Group [1968] HCA 1 ; 118 CLR 618 lies in the explanation of what is involved in establishing a prima facie case rather than any consideration of the application of the principles to patent infringement. It would be surprising if Gummow J had joined in an exercise which would effectively overrule Martin Engineering 81 ALR 543 without any acknowledgement of that. I propose to direct myself in accordance with Beecham Group [1968] HCA 1 ; 118 CLR 618 as it is explained by both Martin Engineering 81 ALR 543 and O'Neill 227 CLR 57.


case_text: I am not satisfied the damages would be an adequate remedy if Sanofi succeeds in the suit, notwithstanding the offer on the part of GenRx to adequately secure a very substantial amount to cover any reasonable likely assessment of damages and offering other undertakings to ameliorate the effect of commencing to trade. It is put on behalf of Sanofi that the assessment of damages would be difficult, if not impossible, for reasons spelled out in detail with some force. No doubt the assessment of damages would be a formidable exercise but I am not persuaded that it would be as complex as suggested. It should not be all that difficult to assess the effect on the incumbent of a new entrant who would have to keep clear records of what took place. I do not see that task as being any more complex in principle than working out the damages which Sanofi would have to pay GenRx under the undertaking for damages for keeping it out of the market if revocation succeeds. However, I am much influenced by the effects of disturbing the status quo, particularly as it relates to the operation of the PBS. A new entrant in this field would have an effect which may be both unpredictable and irreversible. There is also likely to be interference with the trade patterns of Sanofi with its customers, both wholesale and retail, that may not be detectable or measurable in money terms. Sanofi has built up a considerable trade since 2003, and the establishment to go with it, as GenRx looked on. Temporary disturbance of that status quo is not justified. My view is consistent with that of Moore J in Merck & Co Inc v Genrx Pty Ltd (2006) 70 IPR 286. 16 The appeal by GenRx to the public interest in the encouragement of generic competition in pharmaceuticals states one statutory objective. Another is the encouragement of innovation by the enforceable monopoly granted to the holder of a patent. I beware the organisation engaged on a purely commercial enterprise wearing the cloak of public interest. 17 In my opinion, an injunction should be granted provided that the undertaking for damages is adequately secured, bearing in mind that Sanofi is an overseas corporation and bearing in mind the very substantial stakes to which each side has referred and which are backed up by the evidence. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 25 September 2007 Counsel for the Respondent/Cross-Claimant: Mr AJL Bannon SC, Ms CL Cochrane Solicitor for the Respondent/Cross-Claimant: Allens Arthur Robinson Counsel for the Applicant/Cross-Respondent: Mr DK Catterns QC, Ms SJ Goddard Solicitor for the Applicant/Cross-Respondent: Blake Dawson Waldron Date of Hearing: 18 September 2007 Date of Judgment: 21 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1485.html


case_text: In the present case, the defect or irregularity alleged is that the 9 September notice was not signed by the applicant and did not use the word "satisfied". Such defects or irregularities would be "formal" in the sense that they concern the form, or expression, of the applicant's state of mind about the respondent's default. As such they are to be distinguished from the question of default itself, which would be a matter of substance, concerning as it did substantive rights and liabilities. As to the comparable provision in the Corporations Act 2001 (Cth), see Cordiant Communications (Australia) Pty Ltd v The Communications Group Holdings Pty Ltd (2005) 194 FLR 322 at [102]-[106] per Palmer J. 41 Once it is accepted that any defect was formal, or an irregularity, there could be no suggestion that any injustice, substantial or otherwise, was caused. As already noted, it was accepted that the respondent was in default. Nor could there be any doubt that the applicant held a belief that there had been such default. 42 There will be a direction that the PIA executed by the respondent on 2 May 2008 was terminated by a resolution of the respondent's creditors on 30 September 2008.


case_text: Further, the general law of agency supports the validity of the 9 September notice. Gibbs CJ said in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11: There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else... Where a statute requires a document to be signed by a person, this rule is displaced only if the statute indicates, by the language of the statute or by context and subject matter, that personal signature is required: McRae v Coulton (1986) 7 NSWLR 644 at 663 per Hope JA; see also Dal Pont GE, Law of Agency (2 nd ed, LexisNexis Butterworths, 2008) at 77. Section 222B(1) calls only for a declaration that the trustee is satisfied. Neither the language nor the context suggest that signature by the trustee is essential, let alone the trustee's personal signature.


case_text: Further, the general law of agency supports the validity of the 9 September notice. Gibbs CJ said in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11: There can be no doubt that as a general proposition at common law a person sufficiently "signs" a document if it is signed in his name and with his authority by somebody else... Where a statute requires a document to be signed by a person, this rule is displaced only if the statute indicates, by the language of the statute or by context and subject matter, that personal signature is required: McRae v Coulton (1986) 7 NSWLR 644 at 663 per Hope JA; see also Dal Pont GE, Law of Agency (2 nd ed, LexisNexis Butterworths, 2008) at 77. Section 222B(1) calls only for a declaration that the trustee is satisfied. Neither the language nor the context suggest that signature by the trustee is essential, let alone the trustee's personal signature. 27 In O'Reilly it was acknowledged that whether a statute requires a power to be exercised personally is "simply one of construction" (at 10), which "depends on the nature of the power and all the circumstances of the case" (at 11). In that case, it was held unnecessary for a Deputy Commissioner of Taxation to personally sign a statutory income tax notice; a facsimile of the Deputy Commissioner's signature, applied by a chief investigating officer, was sufficient. Gibbs CJ adverted to the "chaos" which would result in the administration of taxation if this were not possible (at 12). Practical considerations are also applicable in the present case. It would cause unnecessary inconvenience if a trustee of a PIA were not able to have a partner in the same firm sign a document on his or her behalf. 28 Moreover, the fact that s 63B(1) requires "signed writing" but s 222B(1)(b) says nothing as to signature points against reading into the latter provision a requirement for the "written declaration" to be signed by the trustee. 29 It was put that the 9 September notice did not contain an express statement to the effect that the applicant was satisfied that the respondent was in default.


case_text: I accept the first respondent's submissions in respect to the first ground of appeal. There is nothing unreasonable in the Tribunal's evaluation of the evidence before it. There was evidence to which the Tribunal referred that allowed for a conclusion that the appellant's claims were not plausible. He and his family had lived in the same residence (whilst in Lithuania) since 1998 or 1999. His wife worked. His son attended school. The appellant travelled to other parts of Europe, apparently without difficulty, and re-entered Lithuania, again apparently without difficulty. Whilst in those other countries, he had never taken the opportunity to apply for protection, notwithstanding his complaint that he has been subject to discrimination since 1984. On that evidence, the Tribunal could find that his claims were not plausible. That was not the only finding that was open but it was open. As the first respondent rightly contends, in the absence of any manifest unreasonableness or illogicality ( Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6 and 368; NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 at [115] ; see also Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at [137] - [138] ), the findings made by the Tribunal are findings of fact which should not be disturbed by this Court on appeal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 36.


case_title: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321


case_title: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264


case_title: Minister for Immigration and Ethnic Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611


case_text: In respect to the second ground of appeal, the first respondent submitted that there was no error in the finding made by the Federal Magistrate and that the information complained of fell within the ambit of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [41] [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at [48] ; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . The first respondent further contended in reliance upon SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 that, in any event, the information itself did not form part of the reason for decision but rather it was the Tribunal's appraisal of that information as being inconsistent with the appellant's claims to have suffered past persecution that was the reason for decision. 32 Although the appellant now asserts that he was only telling the Tribunal he left on his passport, as opposed to leaving without difficulty, the Tribunal's interpretation of his answer that the appellant had also agreed to that second assertion was not unreasonable. The Tribunal was entitled to assume that the appellant was answering its question in full. It follows that there is no error in finding that the appellant provided that relevant information to the Tribunal pursuant to s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; 156 FCR 419.


case_text: With respect to the allegation of bias in ground 1, the first respondent submitted: [T]here is nothing in the decision record that suggests that the Tribunal member had a pre-existing state of mind which disabled her from undertaking or rendered her unwilling to undertake any proper evaluation of the relevant materials before her ( Minister for Multicultural and Indigenous Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [35] and [72]) or that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at [27] . 28 I also accept that there is no evidence of any bias, apprehended or otherwise. An allegation of bias against the Tribunal is a serious one and should only be made where there are proper grounds: see SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] . The Tribunal was entitled to arrive at the findings it made based on the evidence before it. I am of the opinion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might not reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: cf Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . For those reasons, the first ground of appeal must be rejected.


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407


case_text: I also accept that there is no evidence of any bias, apprehended or otherwise. An allegation of bias against the Tribunal is a serious one and should only be made where there are proper grounds: see SCAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 397 at [19] . The Tribunal was entitled to arrive at the findings it made based on the evidence before it. I am of the opinion that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might not reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: cf Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] . For those reasons, the first ground of appeal must be rejected.


case_text: The appellant also made oral submissions in support of this ground. In those submissions he referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152. 17 In his submissions, the appellant referred to the Tribunal's decision where the Tribunal states: [I]t is not consistent with those claims, namely that the police were persecuting him and fabricating charges against him, that the applicant left his country without difficulty to come to Australia in January 2003. 18 The appellant referred in his written submissions to the transcript of the Tribunal hearing: (i) Tribunal: "By the way, did you have any difficulties making exiting your country? You went together, is that right"? (ii) Appellant: "We did not go together. I left on my own because it took some time and the wife had to stay and fanalise (sic) the sell of the unit and also, that was one reason and the other reason was that I was afraid to be seen in the airport that we were living at once that there will not be any implications. (iii) Appellant: "I did not break any laws ... I just do not know what they are capable of, what to expect. It was just my means of precautions". (iv) Tribunal: "But you did not have any ... you just exited on your passport without any difficulties is that what happened?" (v) Appellant: "Yes, that's right. I think it was one of the main aim of the police, sort of police and they achieved". 29 There is nothing before me to indicate that the Tribunal did not comply with its statutory obligations under s 425 of the Act. The Tribunal was not under any obligation to give the appellant "a running commentary upon what it thinks about the evidence": SZBEL [2006] HCA 63 ; 228 CLR 152 at [48] . 30 This ground of appeal also fails. 31 This ground asserts that the Tribunal's finding is based upon the exchange in the hearing to which I have referred. That may or may not be the case. The Tribunal might have concluded that the appellant did not have difficulty leaving Lithuania for any of three reasons. It might have relied on the evidence to which reference has been made. It might also have simply been observing that the appellant was not prevented from leaving by border authorities. It might also have been relying upon the appellant's own evidence which showed that he had travelled extensively with no suggestion that leaving Lithuania involved any difficulty. However, I will assume that the Tribunal reasoned in the way the appellant complains.


case_text: In respect to the second ground of appeal, the first respondent submitted that there was no error in the finding made by the Federal Magistrate and that the information complained of fell within the ambit of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at [41] [64]; VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851 ; (2006) 154 FCR 302 at [48] ; SZDPY v Minister for Immigration and Multicultural Affairs [2006] FCA 627 at [35] . The first respondent further contended in reliance upon SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 that, in any event, the information itself did not form part of the reason for decision but rather it was the Tribunal's appraisal of that information as being inconsistent with the appellant's claims to have suffered past persecution that was the reason for decision. 34 In any event, the information itself did not form part of the reasons for decision because it did not, in its terms, constitute a denial or undermining of the appellant's claims to being a refugee: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; 235 ALR 609 at [17] . 35 For those reasons, I find that there was no error in the Federal Magistrate's decision because in answering the Tribunal's question the appellant was thereby providing this information to the Tribunal pursuant to s 424A(3)(b). 36 The second ground of appeal also fails.


case_outcome: distinguished

case_text: The appellant referred to the decision of Rares J in SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [32] in support of his submissions: The reasons for the decision are not made into information given by the applicant 'for the purpose of the application' simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of...s 424A. 23 The appellant argued that the information of which he now complains was not before the original decision maker as it had not been submitted with his original application and, for that reason also, was not information given for the purpose of the application. 24 The first respondent has addressed both grounds of appeal. The first respondent submitted that the evidence relied upon by the Tribunal formed a sufficient basis for finding that the appellant's claims were not plausible, notwithstanding that alternative inferences may have been open. The first respondent contended that the findings were not perverse or otherwise unreasonable in the sense of being contrary to all of the probative material before the Tribunal. 33 The decision of Rares J in SZGGT [2006] FCA 435 to which the appellant has referred does not assist the appellant. Justice Rares' dicta was directed to a contention that in "applying for a review of the delegate's decision, that decision itself is 'information that the applicant gave for the purpose of the application' . " This is not a case where the applicant for a protection visa provided information to a delegate which was subsequently used by the Tribunal. This is a case where the appellant provided the information to the Tribunal itself.


case_text: On 26 October 2005 Siopis J dismissed Hayes Knight's interlocutory application in the Judicial Review Proceedings seeking the provision by ASIC of reasons for its decisions of 3 August 2005. His Honour did, however, make an order that ASIC give discovery of documents relating to its decision: Hayes Knight GTO Pty Ltd v Australian Securities & Investments Commission [2005] FCA 1509.


case_text: The applications by Hayes Knight in the Examination Proceedings and the Judicial Review Proceedings came on for hearing on 18 November 2005. In opening, counsel for Hayes Knight, Mr Donaldson SC, drew the Court's attention to a passage from the judgment of Gaudron J in Gould v Brown [1998] HCA 6 ; (1998) 193 CLR 346 at 405 in which her Honour said: '... to the extent that the power conferred by Ch 5, Pt 5.9 is not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of the corporation, it is not properly characterised as judicial power.' Counsel submitted that there was a question whether Pt 5.9 went beyond the judicial power of the Commonwealth to the extent that it authorised examination unrelated to a matter, such as the winding up of a corporation. Discussion ensued about the possibility of transferring the matter to the Supreme Court of Western Australia but, as was pointed out by counsel for Hayes Knight, that did not cure the difficulty as the Supreme Court would still be asked to exercise federal jurisdiction and so confined by the constraints of Ch III of the Constitution . In the event, the hearings were adjourned to enable the parties to consider their positions. Ultimately Notices of a Constitutional Matter were given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth and the States. 24 On 8 February 2006 ASIC filed a notice of intervention in the Examination Proceedings in relation to the Hayes Knight application to discharge the examination summons. Both applications were subsequently relisted for hearing on 24 and 25 May 2006. 25 In the Examination Proceedings a "Minute of Proposed Amended Interlocutory Process" was filed on 3 November 2005. On 7 November 2005 Siopis J directed that it stand as the amended interlocutory processes of Hayes Knight and Mr O'Brien. That is the document that can be regarded as the initiating document in the discharge application brought by Hayes Knight and Mr O'Brien. 71 The cross vesting arrangements under the Corporations Law were challenged in Gould v Brown as an element of a challenge to the exercise of the examinations power under ss 596A and 596B by the Federal Court. The High Court divided evenly on the challenge to the cross vesting scheme which was therefore upheld as it had been in the Full Federal Court below. It was, however, only a matter of time before the validity of the cross vesting arrangements would come up again for consideration by the High Court. They did so and were held by a majority in Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 to be invalid to the extent that the State Corporations Laws purported to confer jurisdiction on the Federal Court. 99 In Gould v Brown summonses for examination issued by the Federal Court under ss 596A and 596B of the Corporations Law were challenged on the basis that the Court had no jurisdiction to issue them or conduct examinations. The first basis of the challenge, which failed, on the evenly divided vote of the Court, was that the State Parliaments had no power to invest in the Federal Court jurisdiction in matters arising under the Corporations Laws of the States. The second basis, relevant here, was that the examination function conferred on the Federal Court by the State laws did not involve the exercise of judicial power. 102 Gaudron J held that Ch III would preclude conferral on the Federal Court of a non-judicial examinations power "not confined to examination by a court which has exercised or is exercising jurisdiction to make an order for the winding up of corporations" (405). However there was nothing to prevent the Commonwealth from conferring power of that kind on the Supreme Court of the Australian Capital Territory (405). Reference should be made in that regard to the developing jurisprudence about the interaction of Ch III and the Territories' power in Spratt v Hermes [1965] HCA 66 ; (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer [1971] HCA 10 ; (1971) 125 CLR 591; Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44 ; (1999) 165 ALR 171 and in the joint judgment of Black CJ and Hely J in North Australian Aboriginal Legal Aid Service Inc v Bradley [2002] FCAFC 297 ; (2002) 122 FCR 204 at [106] [133].


case_title: Re Greys Brewery Company (1883) 2 Ch D 400

case_text: Statutory powers of examination of persons in connection with the affairs of bankrupts predated the creation of such powers with respect to the affairs of companies. What has been called the first bankruptcy statute in England, the 1842 Act, 34 and 35 Hen VIII c 4, provided for the examination of third persons about a debtor's estate. The earliest such provision in the companies laws of the United Kingdom was s 15 of the Joint Stock Companies Winding Up Act 1844 (UK) (7 and 8 Vict 111). Of that provision it is said in the 5 th Edition of McPherson's Law of Company Liquidation (Thomson, at 15.500): 'It empowered the court to summon and examine persons who were thought to be capable of giving information about the property and past transactions of the company. But the primary purpose of examinations of this kind was to assist the liquidator in locating the assets.' Like powers were conferred by s 115 of the Companies Act 1862 (UK) (25 and 26 Vict c 89). By that section the court was given power to summon before it any person whom it might deem capable of giving information concerning the trade dealings, estate, or effects of the company. The examination was in private. It was referred to by Chitty J as the "Star Chamber" clause: Re Greys Brewery Company (1883) 25 Ch D 400 at 408. It was analogous to s 120 of the Bankruptcy Law Consolidation Act 1849 (UK) (12 & 13 Vict 106) which was in force when the 1862 Act was passed. Sir George Jessell MR in Re Gold Company (1879) 12 Ch D 77 at 85 said: 'In fact the whole object of the section is to assimilate the practice in winding-up to the practice in bankruptcy, which was established in order to enable assignees, who are now called trustees, in bankruptcy to find out facts before they brought an action, so as to avoid incurring the expense of some hundreds of pounds in bringing an unsuccessful action, when they might, by examining a witness or two, have discovered at a trifling expense that an action could not succeed.'


case_title: Re Gold Company (1879) 12 Ch D 77


case_text: The connection between examination under bankruptcy and winding up laws has been recognised over more than 125 years that have passed since Jessell MR made his comments. The position historically is no different in Australia. As Lockhart J said in Re Csidei; Ex parte Andrew (1979) 39 FLR 387 at 390: '... the process of examining persons in the winding up of companies has been borrowed from the law of bankruptcy and the purpose of the inquisitorial powers conferred by bankruptcy and company legislation is much the same.'


case_title: Ex parte Barnes (1896) AC 146

case_text: Section 8 of the Companies (Winding Up) Act 1890 (UK) provided for the examination by the court of promoters, officers and other persons who had past connections with the company following upon a report to the court by the official receiver. Unlike s 115 of the 1862 Act, which remained in force, s 8 provided for public examinations: See Ex parte Barnes (1896) AC 146. Its introduction in England in 1890 is described in McPherson as "... part of the general policy in England at the time assimilating liquidations with bankruptcy" (at 15-500). The Australian colonies prior to federation enacted companies statutes based on the Companies Act 1862 (UK). 49 In the first half of the twentieth century the laws of the United Kingdom relating to companies were reviewed at 20 year intervals by a Departmental Committee appointed by the Board of Trade. This resulted in consolidations of the Companies Act in 1908, 1929 and 1948: Gower Principles of Modern Company Law (6 th edition, Sweet & Maxwell, 1997) at 48-49. Although the Companies Acts of the Australian States were based on the UK models differences developed over time between them. The inconveniences caused by these differences led to the development, by agreement between the States and the Commonwealth, of a Uniform Companies Bill based on the Companies Act 1958 (Vic). In 1961 and 1962 the States each passed a Companies Act based on the Bill. The Commonwealth made Companies Ordinances in like terms for the Australian Capital Territory, the Northern Territory and what was the then Territory of Papua New Guinea: Fords Principles of Corporations Law (12 th Edition, Butterworths, 2005) at [2-170], see also Ford HAJ, Principles of Company Law (Butterworths, 1974) at [111]. 50 The powers of examination of persons in connection with the court ordered winding up of companies were found in ss 249 and 250 of the Companies Act 1961 . The two sections were located in Div 2 of Pt 10 entitled "Winding up by the Court". They were based on ss 268 and 270 of the Companies Act 1948 (UK). Section 249 conferred power on the court to "summon before it any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the court deems capable of giving information concerning the promotion, formation, trade dealings, affairs or property of the company" (s 249(1)). Such an examination could be held, if the court so directed, before a magistrate (s 249(4)). The section was silent on whether such examinations were to be held in public. Section 250 conferred power on the court to order a public examination of persons or officers of the company where the liquidator had made a report to the court alleging the commission of a fraud or the concealment of any material fact by a promoter or officer of the company.


case_title: Re Rolls Razor Ltd [1968] 3 All ER 698

case_text: The purpose of s 268 of the Companies Act 1948 (UK) on which s 249 was based was described by Buckley J in Re Rolls Razor Ltd [1968] 3 All ER 698 thus (at 700): 'The powers conferred by s 268 are powers directed to enabling the court to help a liquidator to discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings and so forth, in order that the liquidator may be able, as effectively as possible and I think, with as little expense as possible and with as much expedition as possible, to complete his function as liquidator, to put the affairs of the company in order and to carry out the liquidation in all its various aspects, including of course the getting in of any assets of the company available in the liquidation.' 52 There has been debate in Australian and English authorities about whether the examination power permits "fishing" questions: See: Keay AR, " Gone Fishing!" Is it Legitimate in an Examination Under Section 597 of the Corporations Law? 1991, 9 C & SLJ 70. The authorities and the issues discussed in that article revolved around the difficulties facing liquidators trying to obtain information about the affairs of a company in often chaotic circumstances following its winding up. 53 A broader power of examination was introduced into the Companies Act 1961 by the Companies Act Amendment Act 1969 (WA) which enacted s 367A. That section provided, in subs (1): 'Where it appears to the Attorney General that any officer or former officer of a company to which this section applies has conducted himself in such a way that the officer or former officer has rendered himself liable to action by the company in relation to the performance of his duties as an officer of the company, the Attorney General, or any person who is authorised in that behalf by the Attorney General, may apply ex parte to the Court for an order that the officer or former officer shall attend before the Court on a day to be appointed by the Court to be examined as to his conduct and dealings as an officer of the company.' (emphasis added) Section 367A(2) provided that any examination under that section should not be held in open court unless the court otherwise ordered. The range of companies encompassed by the term "a company to which this section applies" in s 367A was limited by s 367C(1) to companies which were in the course of being wound up or were under official management, companies in respect of which an inspector had been appointed and companies in respect of which a receiver and manager had been appointed either by the court or under an instrument. It also extended to any company which had ceased to carry on business or was unable to pay its debts.