case_text: Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) [1993] SASC 4359 ; (1993) 61 SASR 557 , the Full Court of the Supreme Court of South Australia permitted a liquidator to seek information as to the nature and extent of the professional indemnity insurance cover held by professional advisors to the company in liquidation to determine the likely possibility of recovering any judgment obtained against them having regard to the cost likely to be generated by liquidation. Merim did not seek to rely, by analogy on O15A r 6 of the Federal Court Rules which enable an order to be made for preliminary discovery. Merim accepted that the Court, under O 15A r 6, is required to determine whether an applicant has reasonable cause to believe that it may have a cause of action against another person, and whether the applicant has insufficient information to enable the decision to be made. Merim acknowledged that access to insurance policies are usually denied under this Rule (unless relevant to investigating the identity of potential parties to an action).


case_outcome: considered

case_text: submitted the position for a shareholder, who is granted inspection of the books of a company pursuant to s 247A for the purpose of considering whether proceedings should be commenced in the name of the company against its directors is analogous to that of a liquidator examining the affairs of a company to determine whether litigation on behalf of the company should be pursued. I do not consider that there is an exact analogy between the position of a shareholder and the position of a liquidator in these circumstances. The liquidator is given specific functions and powers by statute and has a status quite independent of any other interest in the company. This status was emphasised by the Full Federal Court in Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 921 ; (1994) 48 FCR 301. The Full Court said at 306: "A liquidator, when engaged in litigation on behalf of a company which is being wound up, or when contemplating instituting such litigation, is not in the same position as an ordinary litigant. The liquidator comes to the company as an officer of the court under a duty and responsibility to get in and maximise the assets of the company for distribution for the benefit of creditors. In the discharge of his or her duty and function, the liquidator comes to the company with limited or no knowledge of the company's assets, business and affairs. The liquidator is therefore in a position of disadvantage to make informed decisions of both a legal and a commercial nature necessary to carry out the winding up. The legislature has recognised this position of disadvantage and addressed the problem by the enacting of s 596B of the Law and its predecessors. The effect of the legislation is to place a liquidator in a privileged position to obtain information relevant to and necessary for the proper discharge of his or her statutory function. The seeking of information to make decisions as to whether or not litigation ought to be embarked upon or continued in itself is no more than 'an exercise of his duties and the fulfilment of his responsibilities as liquidator' (per Bryson J in Lombard Nash International Pty Ltd v Berentsen (1990) 8 ACLC 1213 at 1217)."


case_outcome: cited

case_text: contended that there was no analogy between the issues in this proceeding and the situation of a liquidator investigating whether to institute proceedings against directors of the company. Style emphasised the unique situation of a liquidator compared to that of an ordinary litigant, Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 , 497. According to Style, the 'real' purpose of s 247A is to enable a shareholder who has identified a case suspected as requiring investigation to the requisite degree to obtain access to documents of the company to determine whether the case has substance; it is not to enable a shareholder to inspect all the documents of the company that the shareholder may wish to see to determine whether a derivative action would result in the company ultimately recovering substantial funds from directors if a case against them is proved. The situation facing Merim is quite different from the situation facing a liquidator in the cases where a liquidator has sought production of directors and officers insurance policies. In those cases the liquidator did not know whether any such policies were held by the relevant companies or persons against whom proceedings were being contemplated. In this case Merim knows that Style holds, or at least has held, directors and officers insurance. So much is stated on page 22 of Style's Annual Financial Report for the year ended 30 June 2007 in the Directors' Report under the heading "Indemnifying Officers or Auditor" in the following terms: " Indemnifying Officers or Auditor During or since the end of the financial year the company has given an indemnity or entered an agreement to indemnify, or paid or agreed to pay insurance premiums as follows: The company has procured Directors & Officers insurance to insure each of the following directors against liabilities for costs and expenses incurred by them in defending any legal proceedings arising out of their conduct while acting in the capacity of director of the company, other than conduct involving a wilful breach of duty in relation to the company. The amount of the premium is estimated to be $12,636. Gregory Johnson Sean McDaniell Murray Freeman Stephen Roux" It is not unreasonable to assume that Style has continued to procure that insurance during periods subsequent to 30 June 2007. Merim therefore knows of the existence of a policy of insurance and the amount of the premium estimated by Style to be payable under it. That was the position as at 30 June 2007. What Merim does not know, however, is the extent of the cover granted under that policy and whether it is current. I therefore consider that it is appropriate, as a matter of exercise of discretion to order that Style produce for inspection any directors and officers insurance policies currently held by Style. The cover granted under any such policies will be relevant to the decision to be made by Merim, after inspection of the other documents in respect of which I propose to make an order, whether to apply for leave under s 237 of the Act to bring a proceeding on behalf of Style in its name against any directors or officers of Style. Counsel for Style submitted that, if I was minded to make an order under s 247A, that Mr Yunghanns, in addition to Senior Counsel and an instructing solicitor for Merim ("the Nominated Individuals"), be permitted to inspect the relevant documents they should be required to sign undertakings in relation to their inspection of the documents and adhere to a confidentiality regime proposed by Style. Senior Counsel for Merim also requested that an accountant for Merim be added to the list of persons to inspect the relevant documents.


case_text: Full Court also noted that in Re Spedley Securities Ltd (In Liq); Ex parte Potts (1990) 8 ACLC 673 , Young J recognised that the statutory power in s 596B of the Corporations Law (also s 596B of the Act) in relation to an examination of a person about "examinable affairs" of a corporation was not limited to ordering an examination to obtain evidence to prove a claim but also getting evidence to determine the prospects of success. As was pointed out in the cases to which I have earlier referred (par [67] above) the rationale underlying s 247A, insofar as the purpose is to inspect documents in order to consider possible legal proceedings against directors is to enable a shareholder who has identified an appropriate "case for investigation" to determine whether that case has any substance or prospects.


case_text: The appellate jurisdiction of the Federal Court of Australia includes a jurisdiction to hear and determine appeals from judgments of a Court of a State exercising federal jurisdiction, in such cases 'as are provided by any other Act' (s 24(1)(c) Federal Court of Australia Act 1976 ). Section 131B(2) of the Copyright Act 1968 (Cth) (' Copyright Act ') provides that an appeal lies from a decision of a Court of a State under Part V of the Copyright Act to the Federal Court of Australia. Section 39(2) of the Judiciary Act 1903 (Cth) provides that 'the several Courts of the States shall within the limits of their several jurisdictions, ... be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...'. The High Court has original jurisdiction in the five matters set out in s 75 of the Constitution . By s 76 of the Constitution , the Parliament may confer original jurisdiction on the High Court in any matter arising under any laws made by the Parliament (s 76(ii)). Additionally, by s 77(iii) of the Constitution , the Parliament may make laws investing any Court of a State with federal jurisdiction in respect of the nine matters identified in ss 75 and 76 of the Constitution . Since original jurisdiction can be conferred upon the High Court in any matter arising under the Copyright Act , s 39(2) invests the Magistrates Court of Queensland with federal jurisdiction in respect of a matter under Part V of the Copyright Act which includes s 115 of the Copyright Act conferring an entitlement upon the copyright owner to bring an action for infringement of copyright. The decision of her Honour was thus a decision under Part V of the Copyright Act and an appeal lies from that decision to the Federal Court of Australia ( Ly and Another v Jenkins and Others [2001] FCA 1640 ; (2001) 114 FCR 237 per Sackville J at [69] and following). 6 The exercise of the Court's appellate jurisdiction contemplates applications for leave to appeal or for an extension of time within which to institute an appeal to the Court (s 25(2)(a) and (b)). By s 25(2A) , the rules of Court may make provision for applications to be dealt with of the kind mentioned in s 25(2). Order 52, rule 15(1)(a) provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced. The time limited for filing and serving a notice of appeal, in this case, expired on 10 April 2007. Order 52, rule 15(2) provides that the Court or a judge for 'special reasons' may at any time give leave to file and serve a notice of appeal which, in accordance with Form 54A and Order 52, rule 15(3) involves an application for an extension of time within which, by leave, to file and serve a notice of appeal. The notice of motion seeking an extension of time was filed on 13 December 2007 approximately eight months after the expiration of the time limited for filing and serving an appeal.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J).


case_title: Stollznow v Calvert [1980] 2 NSWLR 749


case_title: Douglas v Allen (1984) 1 FCR 287


case_title: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344


case_title: Seiler v Minister for Immigration (1994) 48 FCR 83


case_title: Re Envirotech Australia Pty Ltd (1989) 14 IPR 108


case_title: Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277


case_outcome: followed

case_text: The tribunal's reasons did not deal with that part of the hypothesis in Dr Volker's evidence that the development of Mr Gilkinson's obesity, first observed in 1971, was contributed to by either the effects of shift work alone, or that in combination with the two factors of eating to excess and not exercising sufficiently. Whether or not Dr Volker's hypothesis was right or wrong, it could not be said to be fanciful, impossible, incredible, not tenable, too remote or too tenuous, unless the tribunal found as a fact that it was satisfied beyond reasonable doubt that there was no temporal connection between Mr Gilkinson having to undertake shift work while on operational service and the development of his obesity: Bushell v Repatriation Commission (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ.


case_text: A finding of satisfaction beyond reasonable doubt requires the exclusion of any reasonable hypothesis consistent with the contrary. The question for the tribunal was whether, having regard to the hypothesis of Dr Volker, his obesity could be said beyond reasonable doubt not to have arisen out of or been attributable to Mr Gilkinson's operational service: Roncevich 222 CLR at 125-126 [23]-[28]; see too Byrne v Repatriation Commission (2007) 242 ALR 620 at 633 [58] per Buchanan J, with whom Gyles J at 621 [3] and Edmonds J at 623 [11] agreed. 30 I am of opinion that the amended notice of appeal did state questions of law. As was the case in Roncevich 222 CLR at 126 [28], the questions of law were whether the tribunal posed for itself and answered the two relevant questions. The tribunal's statement in the last sentence of [22] of its reasons, that nothing occurred during the operational service that in any way caused or contributed to Mr Gilkinson's obesity, over and above the existing fact that he was eating to excess and not exercising sufficiently, was a mere conclusion or assertion: cf: Byrne 242 ALR at 632 [53] per Buchanan J, Edmonds J agreeing at [10]. It did not advance a reason for negating beyond reasonable doubt Dr Volker's hypothesis that shift work could have caused or contributed to Mr Gilkinson's eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country.


case_text: Of course, the reasons of an administrative decision-maker must not be construed minutely and finely with an eye keenly attuned to the perception of error. Those reasons are meant to inform and should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed. The Court must guard against turning a review of a decision-maker upon proper principles into a reconsideration on the merits of a decision as explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 25 Here, the tribunal simply asserted that Mr Gilkinson's eating habits and lack of exercise habits had nothing to do with his operational service. But it never dealt with the questions of any relationship between either or both of those habits and the necessity for him to undertake shift work as a part of his ordinary service and how his being obese may or may not have been arisen from or been attributable to the necessity for him to perform shift work during his operational service. 26 The Commission argued that, at least implicitly, the tribunal must have reasoned that Mr Gilkinson would have reached obesity whether he had gone on operational service or not. That argument recognised, by using the word "implicitly", the tribunal's lack of express reasons to negate any hypothesis concerning shift work. The tribunal was required under s 43(2B) of the Administrative Appeals Act to set out its reasons and not to leave important matters to be dealt with by implications. It was not entitled to leave open the hypothesis, clearly articulated by Dr Volker, that the necessity to perform shift work while on operational service itself contributed to Mr Gilkinson's eating disorder and lack of exercise leading to his obesity. The tribunal dealt expressly with only three of the four factors raised in Dr Volker's hypothesis namely, the plentiful supply of food and alcohol and low levels of physical activity. It did not deal with shift work.


case_text: Where the tribunal gives the reasons for its decision in writing, s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) provides that those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. The tribunal need only set out the findings that it actually made: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [77] per McHugh, Gummow and Hayne JJ. The tribunal's identification of what it considered to be the material questions of fact might demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration: Yusuf 206 CLR at 346 [69]. A complaint that the tribunal failed to make a relevant finding of fact will often amount to a complaint of error of law or a failure to take into account relevant considerations, as their Honours pointed out in Yusuf 206 CLR at 349-350 [78].


case_outcome: referred to

case_text: If a decision-maker does not give any reason for his or her decision, a court may be able to infer that the decision-maker had no good reason for it: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. They pointed out that the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120 had held that where a constitutional writ of prohibition was sought, the inadequacy of material on which the decision-maker acted might support the inference that the decision-maker had applied the wrong test or was not in reality satisfied of the requisite matters: Palme 216 CLR at 223 [39].


case_title: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212


case_outcome: applied

case_text: The relevant question for the tribunal was whether there was a reasonable hypothesis that Mr Gilkinson's shift work during the period of his operational service prior to the diagnosis of obesity in June 1971 contributed causally to his being obese at this time. The fact that prior to his operational service Mr Gilkinson may have been well on the way to that physical state, did not mean that when he arrived there his obesity had not arisen out of or been attributable to his operational service at all. The tribunal made findings which dealt with only three of the four factors mentioned by Dr Volker. It gave no reasons why, despite her opinion and her references to literature supporting the theory, shift work could not have contributed to Mr Gilkerson's obesity which first occurred during his operational service: Repatriation Commission v Tuite [1993] FCA 39 ; (1993) 39 FCR 540 at 542 per Davies J. As Burchett and Einfeld JJ said in Tuite 39 FCR at 545: "It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction." (emphasis added) 20 Burchett and Einfeld JJ thus found that it was open to the tribunal in that case to conclude that a consequence of camp life is a consequence of war service. Likewise, here it was open to the tribunal to find that a consequence of Mr Gilkinson continuing with shift work during operational service was the onset of obesity. The hypothesis put forward by Dr Volker and the undisputed fact that Mr Gilkinson was undertaking shift work, had been raised before the tribunal. But, the tribunal did not expressly consider in its reasons the impact of shift work either alone or in combination with Mr Glkinson's eating to excess and not exercising sufficiently. All it did was to assert that "nothing that occurred during his operational service" prior to the assumed onset of sleep apnoea "in any way caused or contributed to his obesity over and above the existing fact that [he] was eating to excess and not exercising sufficiently". 21 Mr Gilkinson actually became obese during his operational service, notwithstanding that before that time he was well on the way to being obese. Dr Volker's hypothesis was that the shift work itself that Mr Gilkinson was undertaking during operational service, contributed to his being obese. This issue was like the veteran's having continued to smoke in Tuite 39 FCR at 545 amounting to a matter that the tribunal could conclude was a contributing factor to the veteran's addiction to nicotine. However, the tribunal did not consider or make any finding relating to whether Mr Gilkinson's obesity arose out of or was attributable to the shift work he engaged in on operational service.


case_text: The use of the disjunctive expressions in s 9(1)(b) "arose out of" and "attributable to" manifested a legislative intention to give "defence caused" a broad meaning: see Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 at 126 [27] where this construction was given to an analogous provision, s 70(5)(a). McHugh, Gummow, Callinan and Heydon JJ held that that meaning was not necessarily circumscribed by considerations such as whether the relevant act of the veteran was one that he was obliged to do as a member in the armed forces. They held that the test of attributibility was capable of being satisfied by a causal link alone or a causal connection without any qualifications. Their Honours held that, by failing to pose and answer to the correct question, the tribunal had committed an error of law which was appellable under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Roncevich 222 CLR at 126 [27]-[28]. 5 Their Honours had earlier accepted that whether an event arose in the course of an activity or "out of" an activity, depended upon such matters as the nature of the person's employment, the circumstances in which it was undertaken, and what, in consequence, the person was required or expected to do to carry out his or her actual duties. The connection must be causal, not merely temporal: Roncevich 222 CLR at 125 [23] 6 A veteran's claim for a pension in respect of his or her incapacity from a disease has to be assessed by the Commission (and then the tribunal) on the basis provided in s 120(1). If that incapacity related to operational service rendered by the veteran, the Commission had to determine that the disease was a war-caused disease "... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". Next, in applying s 120(1) in respect of the veteran's incapacity from disease related to service rendered by him or her, the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that it was a war-caused disease. It may only reach this conclusion if the Commission, "... after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person" (s 120(3)). 7 In addition, s 120A(3) provides that, for the purpose of s 120(3), an hypothesis connecting a disease contracted by a person "... with the circumstances of any particular service rendered by the person" is reasonable only if there is in force: "(a) a Statement of Principles determined under subsection 196B(2) ... that upholds the hypothesis." There is no onus of proof on the veteran or anyone else, including the Commission, which applies to the determination of a claim (s 120(6)). 22 A finding of satisfaction beyond reasonable doubt requires the exclusion of any reasonable hypothesis consistent with the contrary. The question for the tribunal was whether, having regard to the hypothesis of Dr Volker, his obesity could be said beyond reasonable doubt not to have arisen out of or been attributable to Mr Gilkinson's operational service: Roncevich 222 CLR at 125-126 [23]-[28]; see too Byrne v Repatriation Commission (2007) 242 ALR 620 at 633 [58] per Buchanan J, with whom Gyles J at 621 [3] and Edmonds J at 623 [11] agreed. 30 I am of opinion that the amended notice of appeal did state questions of law. As was the case in Roncevich 222 CLR at 126 [28], the questions of law were whether the tribunal posed for itself and answered the two relevant questions. The tribunal's statement in the last sentence of [22] of its reasons, that nothing occurred during the operational service that in any way caused or contributed to Mr Gilkinson's obesity, over and above the existing fact that he was eating to excess and not exercising sufficiently, was a mere conclusion or assertion: cf: Byrne 242 ALR at 632 [53] per Buchanan J, Edmonds J agreeing at [10]. It did not advance a reason for negating beyond reasonable doubt Dr Volker's hypothesis that shift work could have caused or contributed to Mr Gilkinson's eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country.


case_text: The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]).


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507


case_title: SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358


case_text: the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire & Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47].


case_text: principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 ( White Industries ) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ( Boston ). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact such that "only one conclusion can be said to be reasonable" summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed:


case_title: Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2008] FCA 1257


case_title: Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955


case_title: Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886


case_text: is necessary to refer in some detail to the circumstances that have given rise to the current litigation and this application for summary judgment. I should emphasise that, in what follows, I make no findings of fact: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J); Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 282. Rather, what follows is a summary of the evidence adduced by Adnunat, given by way of an affidavit of Mr Marco Olivetti, its General Manager. Aside from a short affidavit exhibiting a business name extract of the second applicant, ITW adduced no other evidence. Earlier proceedings


case_text: that in mind, ITW contends that Adnunat has failed to adduce any, or any sufficient evidence, to demonstrate that Adnunat and ITW had by their correspondence or conduct intended to bind themselves to a new contract in the same terms as the Settlement Deed. In "contract by conduct" cases, it said, it is necessary to show from the parties' conduct a "tacit understanding or agreement", where the conduct is such as to prove "all the essential elements of an express contract": see Giles JA, with whom Priestley JA and Meagher JA agreed, in Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Pty Ltd [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 ( Industrial Rollformers ) at [137]. In particular, if a court is to hold that one party has bound itself in contract by its conduct, it must be able "to identify within the conduct of both parties the terms of the contract , and to be objectively satisfied that both parties agreed to be bound by those terms": see Giles JA at [138] (emphasis added). Here, ITW submitted, its conduct in purchasing 9 tonne anchors points to nothing more than the existence of an agreement for the sale of those goods. Adnunat failed to adduce evidence of any conduct or communications by ITW that are referable unequivocally to the express terms of the Settlement Deed, for example the grant of the licence (cl 3.1), the payment of royalties (cl 3.2), the undertaking not to infringe or challenge the validity of the Patent (cl 4 and cl 4.1), the release (cl 5.1) or indemnities (cl 5.3). Moreover, the lack of any such conduct is explicable said ITW, because: ITW then made the following submissions in response to the evidence put forward by Adnunat, summarised at [26]-[31]: ITW also relied on what it described as a number of "serious legal and factual questions" about Adnunat's case, which have a bearing on the terms of the Settlement Deed and which it said are properly determinable only at trial. Adnunat claims that since July 2003 it has had an exclusive licence agreement with Olivetti Concrete for Olivetti Concrete to manufacture, advertise and sell 9 tonne anchors (see par 8 of the applicants' statement of claim and exhibit MGO-1 to Mr Olivetti's affidavit). However, according to its ASIC company extract, Olivetti Concrete did not exist under that name in July 2003. It was instead called Hatherford Pty Ltd until 29 June 2007. While the business name "Olivetti Concrete Lifting Systems" had existed since August 2000, it was registered in the name of Olivetti Engineering until 30 September 2005, when it was transferred to Hatherford Pty Ltd and thereafter deregistered in July 2007. ITW submitted that the exclusive licence agreement was therefore either a forgery or the reference in it to Olivetti Concrete was an error. Despite the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire & Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47].


case_title: Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326


case_text: principles governing the operation of s 31A of the Act were canvassed in detail by Lindgren J in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 ( White Industries ) and Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 ( Boston ). In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact such that "only one conclusion can be said to be reasonable" summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed: Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford 167 FCR at [126] (Gordon J). Although this application is for dismissal of ITW's cross-claim, the allegations to be assessed are not concerned with the claim of invalidity. They concern the alleged existence of a separate and distinct agreement. That agreement and its alleged terms arise in the first instance as part of Adnunat's primary claim: see pars 14 20, esp 17 19, of the applicants' statement of claim. As a consequence, granting the relief sought by Adnunat on this application would have the effect of determining, summarily and in its favour, an important aspect of Adnunat's own claim, which it would otherwise have to prove at trial. It is in that context that ITW advanced no substantive evidence in response to the matters deposed to by Mr Olivetti. The thrust of ITW's submissions appeared to be that Adnunat, bearing the ultimate onus of proving that a binding agreement exists, failed to demonstrate even a prima facie case that ITW has no reasonable prospects of successfully proving otherwise. Consideration


case_text: the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire & Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47]. As Finkelstein J observed in Pacific Brands [2005] FCA 288 , it will only be in very clear cases that the courts will infer a contract from conduct in the absence of written or oral communications that evidence the exchange of mutual promises: see [2005] FCA 288 at [45] and the cases there referred to. In most instances, contract by conduct cases will involve a complex set of facts and require evidence from those who have played a role in the relationship between the parties. Necessarily, where a contract is denied, the credibility of those involved on both sides may be crucial. These considerations are in my view an obstacle to Adnunat obtaining summary relief. At its simplest, Adnunat's case consists of the following steps: In my view, Adnunat's motion confronts three initial problems. First, Adnunat has adduced no evidence that ITW communicated to Adnunat a preparedness, let alone an agreement, to perform Reid's obligations under the Settlement Deed. There is simply no evidence of any discussions between ITW and Adnunat concerning the terms of the Settlement Deed. The problem confronted by Adnunat is that, given it asserts ITW "bound itself to the provisions of the [Settlement Deed]", it must point to conduct that positively and unambiguously demonstrates an agreement to observe those provisions, in particular the No Challenge Term. However there is no evidence that ITW considered itself bound by the No Challenge Term, either from its conduct or communications with Adnunat. Nor is there any evidence it agreed to the Patent Infringement Term or the indemnities given by the original contracting parties. Secondly, Adnunat's reliance on cl 6.3 of the Business Agreement should be treated with some caution. The Business Agreement was between Reid and ITW. ITW's promise to comply with Reid's obligations under existing contracts was a promise given to Reid for Reid's benefit. It is true that cl 6.3 reveals an intention by ITW to perform Reid's existing contractual obligations. However it makes no specific reference to Adnunat or the Settlement Deed. At best, it demonstrates that ITW was prepared to agree with Reid that it would perform Reid's contractual obligations and be accountable to Reid if it failed to do so. Second, it is true that ITW continued to order 9 tonne anchors from Adnunat over a period spanning four months from March to June 2005. However as I have said earlier, the parties' intentions as revealed by that conduct alone are not unequivocal. Taking into account the matters I have referred to at [41]-[43], it is reasonably arguable that the parties were simply content as a practical commercial matter to continue a pre-existing anchor purchase and supply relationship, without having directed their attention to whether ITW would be bound by the Settlement Deed. It is of some relevance in that regard that this is not a case in which the relevant conduct took place over a long period of time (cf Pacific Brands [2005] FCA 288 and Vroon [1994] 2 VR 32) but instead came to an apparently abrupt end after only four months. It may be that ITW considered it commercially expedient to continue sourcing anchors from Adnunat rather than to challenge the Patent and manufacture the 9 tonne anchors it required itself. While that is speculation at this stage, it highlights the difficulty in finding that ITW has no reasonable prospects. Adnunat relied in particular on the email from Mr Pleysiar (see [10]) and contended that it was consistent only with a demand for supply pursuant to the Settlement Deed. However the email makes no reference to the Settlement Deed and the insistence on supply might be said to have arisen just as much from the commercial exigencies ITW faced at the time, compounded by Adnunat's apparent inability to meet existing purchase orders. Third, the fact that ITW paid Adnunat the final royalty amount owing by Reid does suggest an acceptance by ITW of an obligation to do so. The email dated 1 April 2005 reveals that Adnunat had sought sales information from Reid previously in January 2005 and that ITW would make the royalty payment previously due. It is not entirely clear, but it appears from the invoices adduced by Adnunat that the payment was made in about May 2005: see exhibit MGO-29 to Mr Olivetti's affidavit. However even assuming the payment was made, evidence of how and why ITW came to make the payment is not at this stage before the Court and ITW in my opinion has reasonable prospects of rebutting the inference that it made the payment because the parties considered it was bound. In Pacific Brands [2005] FCA 288 at [47] , Finkelstein J said: If the conduct in question is consistent with an intention not to contract, for example, if the conduct is referable to some other obligation, a contract by conduct will not arise: Horrocks v Forray [1975] EWCA Civ 9 ; [1976] 1 WLR 230 , 238-239; The Aramis [1989] 1 Lloyd's Reps 213, 224.


case_title: Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1


case_outcome: distinguished

case_text: sought to draw assistance from the decision of the House of Lords in Tolhurst v The Associated Portland Cement Manufacturers (1900) Limited [1903] AC 414 ( Tolhurst ). Tolhurst involved a contract for the supply of chalk at a stipulated price over a 50 year period. In 1898, Alfred Tolhurst entered into a long term agreement with a cement manufacturer, the Imperial Portland Cement Company, to supply chalk on a weekly basis from the extensive chalk quarries located on his land. The long term arrangement was to both parties' benefit, securing a regular market for Mr Tolhurst and a regular source of supply for Imperial. Two years later in 1900, Imperial sold its cement business to another company, the Associated Portland Cement Manufacturers (1900) Limited, assigned the benefit of the chalk agreement to Associated and went into voluntary liquidation. Mr Tolhurst, while prepared to supply to Associated, was unwilling to do so at the price stipulated in the chalk agreement. Nevertheless, he supplied chalk on credit and brought an action against Associated to recover a higher price. He claimed that Imperial had by its conduct rescinded the chalk agreement and sought a declaration that he was not bound to supply to Associated, as the purported assignee, at the stipulated contract price. Associated and Imperial brought a separate action seeking declarations that the agreement was valid and subsisting and that Mr Tolhurst was bound to supply chalk to Associated at the contract price. On appeal, the House of Lords upheld the Court of Appeal's decision to grant the declarations sought by Imperial and Associated. The House of Lords considered that the terms of the chalk agreement, properly construed, permitted the benefit of the chalk agreement to be assigned. Lord Macnaghten, delivering the leading opinion, observed that contractual rights are not always assignable, for example where the contract involves an element of personal skill or confidence on the part of the original parties. However in the circumstances their Lordships held that the chalk agreement did not require personal performance by either Imperial or Tolhurst and the rights under it were assignable by Imperial, notwithstanding the absence of any express provision regarding assignment in the agreement. Adnunat referred to two particular passages in Lord Macnaghten's judgment. At 419, his Lordship said: [The chalk agreement] is expressed to be made between Alfred Tolhurst and the Imperial Company. They, and they only, are named as the persons to perform the contract. From beginning to end of the instrument, if the contract be taken literally, there is not one word pointing to the continued existence of the contract in the hands of any other person, either by succession or substitution. ... And yet the contract is to endure for the period of fifty years, or if the supply of chalk in the quarries does not hold out so long, it is to last for thirty-five years at least. Now, when it is borne in mind that the Imperial Company must have been induced to establish its works at Northfleet by the prospect of the advantages flowing from immediate connection with Tolhurst's quarries, and that the contract in substance amounts to a contract for the sale of all the chalk in those quarries by periodical deliveries (less what Tolhurst might sell elsewhere), it is plain that it could not have been within the contemplation of the parties that the company would lose the benefit of the contract if anything happened to Tolhurst, or that Tolhurst would lose the benefit of the market which the contract provided for him at his very door in the event of the company parting with its undertaking, as it was authorized to do by its memorandum . (Emphasis added.) In this case, Adnunat contended that the draftsperson of the Settlement Deed has made explicit (in the enurement clause (cl 17)) what Lord Macnaghten (at [47] above) considered to be the implicit intention of the parties in Tolhurst [1903] AC 414 , namely that the parties to the Settlement Deed were to include any successors of the original parties. Adnunat acknowledged that, unlike this case, Tolhurst [1903] AC 414 was concerned with an action by an assignee to enforce the chalk agreement against an original party. However, in reliance largely on the passage quoted at [46] above (in particular the last sentence), it said that this case was otherwise "on all fours with the facts in Tolhurst " and submitted that it was irrelevant, in determining whether there was a mutual intention to contract, which one of the two parties sought to enforce the agreement (ie the assignee or the original debtor). This latter proposition requires some further explanation. Adnunat appeared to place significance on the fact that the House of Lords had made it a condition of the assignee's entitlement to the benefit of the agreement that it perform Imperial's obligations (ie to pay for the chalk): see [1903] AC 414 at 421 (Lord Macnaghten). This, said Adnunat, was significant because Imperial had been dissolved (and existed in name only) and the House of Lords, while observing that it is not possible to assign the burden of a contract without the original debtor's consent, was prepared in the circumstances to find that both Tolhurst and Associated had effectively consented to Associated taking the benefit, along with the burden, of the chalk agreement. This conclusion was reached notwithstanding that Mr Tolhurst had never previously discussed or agreed terms with Associated directly. Mr Tolhurst's consent arose from the terms of the chalk agreement, while Associated's consent was self-evident from the assignment and its preparedness to perform the agreement in place of Imperial. This was an example, said Adnunat, of how a contractual burden may be transferred to a third party without there being a formal novation giving rise to new rights and obligations as between the original debtor (Tolhurst) and the new party assignee (Associated). Applying that result to this case, Adnunat contended that the necessary consent as between ITW and Adnunat should be found given the existence of the enurement clause and ITW's conduct in accepting both the benefit and burden of the Settlement Deed. In my view Tolhurst [1903] AC 414 provides little assistance in resolving the dispute in this case. The issue in Tolhurst [1903] AC 414 was whether the rights created by the chalk agreement were capable of assignment. Once it was decided that they were, it followed as a relatively straightforward matter that the party to whom the rights had been assigned was capable of enforcing them against the original debtor. That is not this case. Adnunat's case is not based on an assignment of the Settlement Deed. Adnunat seeks to enforce the terms of the Deed against a third party, ITW. Its ability to do so depends on there being a finding that a new bilateral contract exists between it and ITW, on the same or substantially the same terms as the Settlement Deed. Rather than it being irrelevant, it is a critical difference here that there was no assignment of the relevant contractual benefit and ITW (unlike Mr Tolhurst) had nothing to do with the original negotiation and formation of the Settlement Deed. Here, the consent of the party against whom the alleged agreement is to be enforced does not turn on the construction of that agreement (or, more particularly, its assignability), as was the case in Tolhurst [1903] AC 414. Instead, this case requires a detailed factual analysis of the parties' conduct, and correspondence, in order to determine whether ITW (a stranger to the original contract) truly made its consent manifest to Adnunat (as the original contracting party). It is true that in Tolhurst [1903] AC 414 the House of Lords considered it unnecessary that the assignor (Imperial) be made a party to Associated's action and held in effect that the assignee itself was obliged to pay for the chalk, if it were to have the benefit of the chalk agreement. The question of necessary parties and the appropriate relief to be given to the assignee in Tolhurst [1903] AC 414 were dictated strongly by the particular circumstances. Imperial was in liquidation, no longer had a board of directors and was deemed by the Companies Act 1862 (UK) to have been dissolved. In the absence of the assignor in all but name, the House of Lords considered it appropriate to grant a declaration that the assignee was entitled to the benefit of the agreement, but only so long as it was willing to pay for the chalk, in place of the assignor. In so doing, their Lordships recognised that in ordinary circumstances an assignor would need to be made a party by an assignee seeking to enforce an agreement: see [1903] AC 414 at 420 (Lord Macnaghten). All of this seems to me to provide little assistance to Adnunat in this case. The House of Lords in imposing the payment condition on Associated was doing no more than fashioning relief, in exercise of its equitable jurisdiction, to ensure an equitable result in the circumstances of that case. Given their Lordship's conclusion as to the assignability of the rights under the agreement, it followed that it would make no difference to Tolhurst if Imperial's obligation to pay for the chalk was performed, albeit vicariously, by Associated. This was not to determine that a new contract existed between Tolhurst and Associated but rather that the original agreement subsisted and was capable of enforcement by Associated as assignee. Having dealt with what I consider are the main difficulties with Adnunat's motion, I turn to some of the key factual matters it relied on. First, it will be recalled that the letter dated 1 March 2005 giving notice of the transfer of business was addressed to Adnunat (as the contracting entity) and stated that the sender was looking forward to "continuing our relationship with you". It thus referred to an existing "relationship" and expressed a desire that that relationship would continue. The letter also stated that the change "reflects only a change in the legal ownership of the Reid business". That statement appears to have been made to explain that the new owner would operate the Reid business separately from its other business units. The letter makes no reference to the Settlement Deed or, significantly, to any possible novation of the Deed (a matter which, it might reasonably be inferred, was in the mind of the new owner, given the terms of the Business Agreement). Once all relevant evidence is in, one might conclude that the letter, viewed from the perspective of the reasonable observer and taking into account all of ITW's conduct after 1 March, demonstrates an intention to take on and perform the terms of the Settlement Deed. However at this stage I do not accept that that is the only reasonable conclusion to reach. It seems to me reasonably arguable that the import of the letter, which is apparently in a standard form, amounts to no more than putting each previous supplier to Reid on notice that Reid's business had been sold and would now be operated by a new entity. A reasonable recipient of the letter might in that context wonder what effect that was to have on any existing contracts, rather than assume that the new owner would as a matter of course observe existing contracts. In my opinion it is not so clear from the letter and the other relevant conduct that these arguments have no reasonable prospects of success.


case_text: the lack of any direct written evidence of an agreement between Adnunat and ITW, Adnunat contends that one must be inferred from their conduct. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire & Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47]. Second, it is true that ITW continued to order 9 tonne anchors from Adnunat over a period spanning four months from March to June 2005. However as I have said earlier, the parties' intentions as revealed by that conduct alone are not unequivocal. Taking into account the matters I have referred to at [41]-[43], it is reasonably arguable that the parties were simply content as a practical commercial matter to continue a pre-existing anchor purchase and supply relationship, without having directed their attention to whether ITW would be bound by the Settlement Deed. It is of some relevance in that regard that this is not a case in which the relevant conduct took place over a long period of time (cf Pacific Brands [2005] FCA 288 and Vroon [1994] 2 VR 32) but instead came to an apparently abrupt end after only four months. It may be that ITW considered it commercially expedient to continue sourcing anchors from Adnunat rather than to challenge the Patent and manufacture the 9 tonne anchors it required itself. While that is speculation at this stage, it highlights the difficulty in finding that ITW has no reasonable prospects. Adnunat relied in particular on the email from Mr Pleysiar (see [10]) and contended that it was consistent only with a demand for supply pursuant to the Settlement Deed. However the email makes no reference to the Settlement Deed and the insistence on supply might be said to have arisen just as much from the commercial exigencies ITW faced at the time, compounded by Adnunat's apparent inability to meet existing purchase orders.


case_title: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298


case_text: corporation may be found to have contravened s 52 even though it lacked any intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228 per Stephen J.


case_text: order to establish that conduct is misleading or likely to mislead it is usually necessary to show that it conveys, in all the circumstances of the case, a misrepresentation: cf. Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555 per Lockhart J. Evidence that some people may have been misled is not essential but it is admissible and may be persuasive if given: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ.


case_text: may be misleading or deceptive if it induces error but it is not sufficient merely to show that it may have led to confusion or caused people to wonder: Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198 per Gibbs CJ. In the present case the representations complained of are alleged to have been made to the general public or a broad cross-section thereof. In Campomar Sociedad Limitada & Anor v Nike International Limited & Anor [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court stated at 84-85: It is in these cases of representations to the public, of which the first appeal is one, that there enter the "ordinary" [the phrase "ordinary purchaser" was used by Mason J in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210] or "reasonable" [the term used by Gibbs CJ in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199] members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics. Thus, in Puxu [(1982) [1982] HCA 44 ; 149 CLR 191 at 199], Gibbs CJ determined that the legislation did not impose burdens which operated for the benefit of persons "who fail[ed] to take reasonable care of their own interests". In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210-211]. Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [ cf Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 30-31]. Thus, in Puxu , Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199].


case_text: order to establish that conduct is misleading or likely to mislead it is usually necessary to show that it conveys, in all the circumstances of the case, a misrepresentation: cf. Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555 per Lockhart J.


case_text: if it is established that the corporation did intend to mislead, a Court may be more likely to find that the conduct complained of was misleading: Campomar Sociedad Limitada & Anor v Nike International Limited & Anor [2000] HCA 12 ; (2000) 202 CLR 45 at 63. In the present case the representations complained of are alleged to have been made to the general public or a broad cross-section thereof. In Campomar Sociedad Limitada & Anor v Nike International Limited & Anor [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court stated at 84-85: It is in these cases of representations to the public, of which the first appeal is one, that there enter the "ordinary" [the phrase "ordinary purchaser" was used by Mason J in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210] or "reasonable" [the term used by Gibbs CJ in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199] members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics. Thus, in Puxu [(1982) [1982] HCA 44 ; 149 CLR 191 at 199], Gibbs CJ determined that the legislation did not impose burdens which operated for the benefit of persons "who fail[ed] to take reasonable care of their own interests". In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210-211]. Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [ cf Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 30-31]. Thus, in Puxu , Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199]. There are a number of matters that emerge from the High Court's statement of principle in Campomar that will guide a Court in determining whether there has been a contravention of s 52 in a situation where the representations complained of have been made to the general public or a section thereof. First, it is necessary to identify the relevant class of people to whom the scratch cards were distributed. It is clear that the relevant class was very wide comprising readers of a broad range of newspapers and magazines with widespread appeal and circulation. It would include people who had not previously received premium mobile phone content and who were unfamiliar with the nature of such services, the manner in which they are activated or the prices charged for them. Secondly, it is necessary to identify the members of that class with a view to postulating a hypothetical individual to whom the attributes of the class can be attributed. That person will be an "ordinary and reasonable" member of that class who takes reasonable care of his or her own interests. But that is not to say that he or she will always be alert to the existence of fine print that might qualify in important ways more prominent statements which capture their attention to begin with.


case_text: Medical Benefits Funds of Australia Ltd & Anor v Cassidy & Anor [2003] FCAFC 289 ; (2003) 135 FCR 1 , Stone J (with whom Moore and Mansfield JJ agreed on this issue) rejected a submission by the Appellant in that case that various written disclosures appearing in billboard advertisements appropriately qualified more prominent statements appearing upon them which would otherwise convey a misleading representation. Her Honour said at [35]-[37]: [35] MBF submits that irrespective of the impression conveyed by the main part of the advertisements the written disclaimers were sufficiently prominent to bring the obstetrics waiting period to the attention of a person viewing the advertisements. [36] In support of its submissions MBF points to the decision of Moore J in George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 ; (2000) 49 IPR 553 ( Wonder White Case ). In that case Moore J held that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation. That case concerned, inter alia, the packaging of bread which declared in large typeface "Now Twice the Fibre*". Moore J observed, at 572, that: "the asterisk is prominent and would be taken to signify some qualification or explanation of the words used. One could expect a consumer interested in the fibre content to seek out the qualification or explanation. Not only is the explanation within 2 cm of the words used on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging." [37] While the Wonder White Case is authority that an asterisk leading to a qualification of a representation may be effective to neutralise an otherwise misleading or deceptive advertisement, whether this is so is a matter for determination in the specific circumstances of any particular case. The qualifying material must be sufficiently prominent to prevent the primary statement being misleading and deceptive or likely to mislead or deceive; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) 52 ATR 1 at [26]-[27]. The Respondent relied upon the words "Subscribe to Moby Planet for your chance to WIN ..." appearing at the top of the front of both types of scratch cards as sufficient to convey to ordinary and reasonable consumers that it was necessary for them to subscribe to Moby Planet in order to collect a prize. I do not accept this submission. Having regard to their overall appearance, the scratch cards do not sufficiently bring home to the minds of ordinary and reasonable consumers that it is necessary for them to subscribe to the Moby Planet service to win a prize. Indeed, the statement to the effect that by matching three symbols the player is guaranteed to win a listed prize is literally inconsistent with the small print relied upon by the Respondent. The additional statements appearing in fine print at the foot of the front of the yellow scratch card and underneath the latex panel of the red one are also insufficient to convey to ordinary and reasonable consumers that it was necessary for them to subscribe to Moby Planet in order to collect a prize. These statements are neither clear nor prominent enough to convey to players that the prizes come at significant cost in the form of a subscription to the Moby Planet service. In deciding what relief, if any, should be granted under s 86C I am guided by the observations of the Full Court in Medical Benefits Funds of Australia Ltd & Anor v Cassidy & Anor [2003] FCAFC 289 ; (2003) 135 FCR 1. I refer in particular to the Reasons for Judgment of Stone J (with which Moore and Mansfield JJ agreed) at para [45]-[58] and the authorities referred to by her Honour in those paragraphs. As I have already found, as at 15 September 2009 a total of 114,418 people had subscribed to the Moby Planet service as a consequence of their participation in the competition. Only 3,561 people had continued with their subscriptions up to that date. The vast majority of people opted out soon after taking out their initial subscription but this did not enable them to avoid payment of the initial $10.00 subscription fee. I agree that it is appropriate that a corrective advertisement be sent by SMS to all current subscribers to the Moby Planet service who took up their initial subscription as a consequence of their participation in the competition. It was submitted for the Respondent that compliance with such an order would give rise to a contravention of the industry code of conduct previously referred to. I am not satisfied this is correct. I think the more significant question is what to do in relation to the large number of people who opted out soon after taking out their initial subscription. In my view many of these people may be entitled to either a refund or compensation from the Respondent on the ground that they were induced to take out their initial subscription by the Respondent's misleading and deceptive conduct. As Stone J accepted in Medical Benefits Funds of Australia Ltd & Anor v Cassidy & Anor [2003] FCAFC 289 ; (2003) 135 FCR 1 at para [59] in the context of the orders for corrective advertising which had been sought in that case: ... there is utility in informing those people who were misled (be the group large or small) of the true position and thus putting them in the position to assess any rights they may have as a result. In my opinion an order for corrective advertising should be made aimed at bringing the key findings of the Court to the attention of people who took out subscriptions to the Moby Planet service but who have since terminated their subscriptions. This would enable them to assess any rights they may have if they so choose. One way of bringing such findings to the attention of at least some of those people is by the publication of a corrective advertisement in various newspapers and magazines in which the scratch cards were inserted. Another possibility is for the Respondent to write to each person who claimed a prize (there were approximately 29,000 such people) advising them of the Court's findings. The latter possibility has not been addressed by either party and I raise it for their consideration. It seems to me that a combination of advertisements in newspapers and magazines and a letter of the kind I have mentioned may be a sensible and effective way of conveying an appropriate message to those people who were affected by the Respondent's conduct.


case_text: Applicant seeks declarations that the Respondent has contravened s 52, s 53(e) and s 53(g) of the Act. I consider that there is a significant public interest in these proceedings and that it is appropriate for the Court to make declarations which identify the particular contraventions of the Act of which the Respondent has been found guilty. There is ample authority to justify the making of a declaration in a case such as this: Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [35] - [36] per Sackville J. The declarations should identify with some precision the facts that have led the Court to the conclusion that a particular contravention has occurred. I would not make a declaration that did no more than declare that the Respondent had contravened a provision of the Act. On the question of injunctive relief Mr Webb submitted that there was no evidence of any threatened repetition of the conduct alleged to have given rise to a contravention of the Act. However, I consider it appropriate to grant injunctive relief for a number of reasons.


case_text: Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37. 16 Ms Baird acknowledged that she had found no authority holding that it was inappropriate, in the circumstances of the present case, to direct that the respondent contemnor file in advance of the hearing any affidavits on which it intends to rely. However, she cited ACCC v Amcor , a decision of mine, in support of her contention. 17 In ACCC v Amcor , the issue was whether, in civil penalty proceedings brought by the ACCC, the Court should order the individual respondents to file and serve their statements of evidence prior to trial. I held that such orders were consistent with the rationale underlying the privilege available to the respondents to refuse to provide information that might expose them to a civil penalty. However, I relied (at 470-471 [20]-[22]) on an alternative ground, as follows: 'If, contrary to my views, the issue is one to be determined in the exercise of the Court's discretion, I would not be prepared to make the orders sought by the ACCC. In my opinion, it would be unfair, in the circumstances of the present case, to require the individual respondents to file statements of evidence in advance of the trial. As I have said, the ACCC alleges that each of the individual respondents was knowingly involved in a contravention by one of the corporate respondents. Having regard to the fact that the ACCC seeks substantial pecuniary penalties against each of them, I think that they should have the opportunity not only of examining, but testing the evidence against them, before having to decide whether or not to give evidence. For reasons I have explained, there is a real risk that, if the individual respondents file statements explaining the extent of their knowledge of their participation in relevant events, the ACCC is likely to be able to bolster the case against them. ... In my view, there is no convincing reason why the ACCC should have such a forensic advantage in a case in which, after all, it seeks to recover penalties against individual respondents for alleged contraventions of Commonwealth law. The only disadvantage to the ACCC in the course that I think should be followed, is that the cross-examiner will not have the respondents' statements of evidence in advance of the opening of their respective cases. Each individual respondent is content to provide a written statement of evidence on the opening of his case, should he decide to give evidence. If any individual respondent does give evidence, the ACCC of course will be entitled to cross-examine him and, if appropriate, to tender evidence in reply. Since the statements of evidence to be relied on by Amcor and Visy are to be filed before the hearing and since they are to provide discovery (the privilege against exposure to a penalty not applying to a corporation ...), any disadvantage to the ACCC is very likely to be minimal. Should the statements of any of the individual respondents raise important matters that could not reasonably have been anticipated by the ACCC, an appropriate application could be made and would be dealt with on its merits.' 18 Initially, I was attracted to the submission that ACCC v Amcor lends support to the respondent's contention that it ought not to be directed to put on its affidavit evidence prior to the hearing of the contempt charge. However, on reflection, it is clear that the decision in ACCC v Amcor was based on considerations that do not apply in the present case: • the issue in ACCC v Amcor concerned the position of individual respondents, not corporate respondents; • there was no dispute in ACCC v Amcor that the corporate respondents were not entitled to invoke the privilege against self-incrimination and that they should be directed to put on their affidavit evidence in advance of the hearing; • by contrast, the individual respondents were entitled to rely on the privilege against self-incrimination, including the privilege against being required to make discovery of real evidence of an incriminating character; and • a finding was made in ACCC v Amcor that the filing of statements by the individual respondents was likely to bolster the case against them. 19 In the present case, the respondent, unlike the individual respondents in ACCC v Amcor , is not entitled to invoke the privilege against self-incrimination in any of its manifestations. Like the corporate respondents in ACCC v Amcor , the respondent in the present case can be compelled to provide discovery of documents relevant to the issues in the proceedings. It is to be borne in mind that one reason for not extending the privilege to corporations is because: '[i]t has a disproportionate and adverse impact in restricting the documentary evidence which may be produced to the court in a prosecution of a corporation for a criminal offence: EPA v Caltex , at 504, per Mason CJ and Toohey J. 20 Moreover, it has not been suggested in this case that a direction requiring the respondent to file any evidence on which it intends to rely in advance of the hearing would be likely to bolster the case against it. Nor has it been suggested by Ms Baird that any particular evidence that might be filed by the respondent is likely to put it at any disadvantage in making a no-case submission at the conclusion of the applicant's case. In ACCC v Amcor , counsel for the ACCC frankly conceded that the object of seeking orders requiring the individual respondents to file their affidavits in advance of the hearing was to make it easier for the ACCC to establish the case against them. No such concession has been sought or obtained in the present case. 21 In these circumstances, I do not think that the respondent has made out its contention that I should, on discretionary grounds, vacate Order 2 made on 27 March 2008. In my opinion, the order creates neither injustice to the respondent nor any significant risk of injustice to it. On the contrary, the order will assist in the orderly conduct of the proceedings and eliminate, or at least substantially reduce, the chances of the hearing being disrupted or delayed because of the need for the applicant to be given time to investigate or assess evidence it sees for the first time during the trial. 22 I therefore do not propose to vacate Order 2. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 5 June 2008 Counsel for the Applicant: Mr D Kell Solicitor for the Applicant: Gilbert and Tobin Counsel for the Respondent: Ms J Baird Solicitor for the Respondent: Deacons Date of Hearing: 29 May 2008 Date of Judgment: 5 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/846.html


case_text: Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37.


case_text: In Australian Competition and Consumer Commission v Info4pc.com Pty Ltd [2002] FCA 949 ; (2002) 121 FCR 24 , RD Nicholson J summarised (at 27[2]) the nature of contempt proceedings in the Federal Court as follows: 'The jurisdiction of the Court to punish contempts arises from s 31 of the Federal Court of Australia Act 1976 (Cth). It has by virtue of that section such power and authority as is possessed by the High Court in respect of contempts of that court. The section therefore does not create an offence of contempt but is declaratory of an attribute of judicial power of the Commonwealth vested in federal courts by s 71 of the Constitution of the Commonwealth: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129 referred to by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 115.'


case_text: This aspect of the reasoning of the High Court was emphasised by Lander J in Australian Securities and Investments Commission v Reid [2006] FCA 699. In that case, his Honour held that the principle in Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292 , which allows an indigent accused in serious criminal proceedings to apply for a stay if legal representation is not provided, does not apply to proceedings for contempt of court. As Lander J pointed out, the procedure in contempt proceedings in the Federal Court is governed by FCR , O 40. In particular, O 40 r 7 requires evidence in support of a charge to be given by affidavit unless the Court directs otherwise, while O 40 r 5(1) requires an allegation that contempt has been committed in connection with a proceeding in the Court to be made by motion on notice in the proceeding. Neither of these procedural requirements applies in criminal proceedings.


case_title: Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292


case_title: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477


case_outcome: discussed

case_text: Ms Baird contended, however, that I should exercise my discretion, whether pursuant to FCR, O 35 r 7(1) or O 10 r 1 (which allows the Court to give directions as to the filing of affidavits and the giving of evidence at the hearing), to allow the respondent to file its evidence after the applicant closes its case at the hearing. She relied on the principle that proceedings for contempt are criminal in nature and must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , at 534, per Brennan, Deane, Toohey and Gaudron JJ. According to Ms Baird, this principle supports the proposition that, as a matter of procedural fairness, a party against whom contempt charges are brought by reason of alleged contraventions of orders of the Court should have the opportunity of testing the evidence against it before having to decide whether or not to give evidence. This was said to be so for the following reason: 'Once affidavits are filed and served, the opportunity arises for the applicant to use and rely on that material in the applicant's case. The applicant may also be able to use the material in dealing with any " no case " submission that the respondent may seek to make at the close of the applicant's case. This potential for use of the respondent's affidavit evidence may limit the respondent's entitlement to make a no case submission, and to require the applicant to prove its case before electing whether to go into evidence.' 11 In Witham v Holloway, the joint judgment stated (at 530) that in general terms the distinction between civil and criminal contempt is that: 'a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice.' However, while recognising that the distinction was of long standing, their Honours regarded it as unconvincing. In particular, they thought (at 533) that there was considerable difficulty with the notion that in some cases the purpose or object of contempt proceedings is ' punitive ' and in others the purpose is ' coercive or remedial '. Their Honours pointed out that proceedings for breach of a court order have the effect of vindicating judicial authority, as well as a remedial or coercive effect. 13 The decision in Witham v Holloway does not mean that contempt proceedings are to be assimilated to criminal proceedings for all purposes. In Witham v Holloway itself, the joint judgment recognised (at 534) that: 'to say that proceedings for contempt are essentially criminal in nature is not to equate them with the trial of a criminal charge. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not.' Their Honours held, on the basis of this reasoning, that the Court had power to order a retrial of contempt charges even though there was no power at common law to order a retrial after a guilty verdict at a jury trial had been quashed on appeal.


case_text: The Respondents have submitted that costs ought to be ordered on an indemnity basis. They acknowledge that the ordering of costs on this basis is exceptional requiring some special or unusual feature: Colgate-Palmolive Co & Anor v Cussons Pty Ltd [1993] FCA 536 ; (1993) 118 ALR 248 at 257. They also acknowledge that there is a general reluctance to make an order for costs to be paid on an indemnity basis against the litigant in person: Bhagat v Global Custodians Ltd [2002] FCA 223 at [57] and [60] per O'Loughlin, Whitlam and Marshall JJ.


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


case_title: Australian Securities and Investments Commission v Eastlands Pty Ltd (No 1) [2006] FCA 1101

case_text: The respondents were represented, on the hearing of the winding up application, by Norman Carey their common director who was given leave to represent them. Mr Carey had applied to strike out the application in August 2006 on the basis that it was invalid for failure to comply with s 459Q of the Act which requires verification, by affidavit, of the currency of the debts at the time of the making of the application. On 16 August 2001 that motion was dismissed Australian Securities & Investments Commission v Eastlands Pty Ltd (No 1) [2006] FCA 1101. Other interlocutory orders refusing leave to issue certain subpoenas and requiring ASIC to provide a list of documents in its possession relevant to the question of solvency were made on the same day Australian Securities & Investments Commission v Eastlands Pty Ltd (No 2) [2006] FCA 1193. 9 At the commencement of the substantive hearing counsel appeared for the respondents and applied for an adjournment. That application was refused. Counsel, whose instructions were limited to the application for an adjournment, then withdrew and Mr Carey represented the respondent companies in person. 10 At the hearing ASIC relied upon a number of affidavits including those of Oren Zohar and ASIC investigators, Kevin Chin and Richard Gomm. It also relied upon the affidavit of Wendy Chan, formerly an assistant accountant with Westpoint Corporation and David McEvoy, a partner in PricewaterhouseCoopers. The affidavits went variously to the records of intragroup debts in the books of Westpoint Corporation, the financial position of the respondents as disclosed in computer databases held by Westpoint Corporation, the way in which the accounting system operated, the service of the relevant statutory demands and of the originating process and supporting affidavits. There were no affidavits relied upon by the respondents. However Mr Carey gave oral evidence at the hearing. 28 The submissions by ASIC outlined the evidence upon which it relies in relation to each of the respondents. The factual outline in its submissions, with respect to each of the respondents, was supported by reference to the relevant parts of the affidavits filed in support of the application. It is convenient to refer to that outline in respect of each of the contested applications. It is not necessary to repeat individually the reference to the basis upon which the debts were asserted, the service of the statutory demands, the non-compliance with those demands and the currency of the relevant debts. Eastlands Pty Ltd (Eastlands) 29 Eastlands has two issued shares, one held by Heca Nominees Pty Ltd (Heca) and the other by Mr Carey. Mr Carey is the company's only director. 30 Eastlands is trustee of the Eastlands Unit Trust. The computer database containing the financial records of Westpoint Corporation and associated companies was kept on a "Triumph" accounting system. According to Mr Richard Gomm, an ASIC investigator, who examined records obtained by ASIC from that system in relation to Eastlands, its business records are almost exclusively concerned with its role as trustee of the Eastlands Unit Trust. The records relating to the Trust, as appears from Mr Gomm's affidavit of 16 October 2006, indicate that: (a) Eastlands Unit Trust earned no income and incurred expenses leaving a net loss before tax of $4,417.50 for the seven months to 31 January 2006. (b) At 31 January 2006 the Eastlands Unit Trust had: (i) net liabilities of $761.68 by way of a bank overdraft or debit; (ii) non-current assets comprising: an investment in land at Innamincka Road $178,000 motor vehicles and office equipment $270,000 a loan to the Quartz Trust $3,714,295 loans to various Westpoint subsidiaries and related trusts (iii) current liabilities of: Westpoint Corporation $3,594,000 Bowesco Pty Ltd (Bowesco) for the Dyson Family Trust $216,650 (iv) non-current liabilities of $96,440; (v) net negative assets of $220,460.


case_text: In Lavercombe v Auscott Ltd [2006] NSWSC 867 ; (2006) 58 ACSR 586, Barrett J said (at [6]): 'As to the apparent non-compliance with s 459Q(b)(i), it cannot be contended that it caused the application to be a nullity. In circumstances where the necessary document was in fact annexed to the supporting affidavit rather than the contemporaneously filed originating process, the non-compliance was a "defect or irregularity in connection with the application" as referred to in s 467A(a) and, since no injustice could conceivably have been occasioned, the court was bound by s 467A not to dismiss the application merely because of the non-compliance.' 26 In this case ASIC submits that no injustice could conceivably have been occasioned. If there were substantial injustice the time to raise it was at the time of the application to strike out the proceedings for failing to comply with s 459Q of the Act made on 16 August 2006. That application went to the sufficiency of the backing affidavit. I accept that this is a case in which there is no substantial injustice arising from non-compliance with s 459Q(b)(i) and on that basis will entertain the application notwithstanding the non-compliance. 27 In so doing I apply s 467A which provides: 'An application under Part 5.4 or 5.4A must not be dismissed merely because of one or more of the following: (a) in any case a defect or irregularity in connection with the application; (b) in the case of an application for a company to be wound up in insolvency a defect in a statutory demand; Unless the Court is satisfied that substantial injustice has been caused that cannot otherwise be remedied (for example, by an adjournment or an order for costs).' Having regard to s 467A it is unnecessary to make any order under s 1322(4) as was also suggested by ASIC.


case_text: In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal. Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 40 In any event, it was not for the Tribunal to necessarily determine opposing views, just have regard to them in examining the validity of the reasoning which supports the hypothesis: see Bushell 195 CLR at 413-416. This, in my view, was the task the Tribunal undertook. 41 I mention one further matter for completeness. The respondent seemed to suggest that assistance could be obtained by s 119 of the VE Act.


case_text: Where a claim relates to operational service, the standard of proof to be applied to the question as to whether a death is war-caused is proscribed by s 120(1) and (3) of the VE Act. Those provisions are to be applied in the manner explained by the High Court in Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571: The position may be summarised as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.


case_text: There may be an issue whether a denial of procedural fairness is an error of law, but in the circumstances of this case where the lack of procedural fairness is clearly apparent on the reasoning of the Tribunal, in my view, the reasons of the Tribunal do disclose an error of law: see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28.