case_text: The Applicant also handed up and stated that she wished to rely upon a letter dated 10 November 2008 addressed to the Court. For the purposes of the leave to appeal application the relevance of the letter is that it signifies a request on the part of the Applicant to add a further ground to the bases upon which, were leave granted, the appeal against the Federal Magistrate's decision would be prosecuted. Materially, the letter reads: More importantly I attach a copy of the Federal Court decision of SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (19/6/2008) and highlighted sections of my RRT decision on 4 January 2007. I have been informed that the RRT appears to have erred and made an error of law in taking into account my Falun Gong activities in Australia. Mention of these Australian activities also made in the Federal Magistrates Court decision (see attached). [sic] Attention was drawn by highlighting to particular passages in the attachments. 8 I mean no disrespect to the Applicant in observing that, though the letter is signed by her, it exhibits a standard of literacy in English and forensic sophistication quite beyond her, having regard to my observations of her at the November and earlier hearings. That is not in any way to gainsay her ability to seek to rely upon it. 9 Mr Baird of the solicitors for the Minister, whose conduct of the case for the Minister on the hearing of the application and on earlier occasions gave practical exemplification to the letter and spirit of the model litigant obligations promulgated by the Attorney-General in Appendix B to the Legal Services Directions made pursuant to s 55ZF of the Judiciary Act 1903 (Cth), had been made aware of the contents of this letter prior to the hearing being called on. On behalf of the Minister he did not object to the passage quoted in the letter being treated as an additional foreshadowed basis of challenge with whether to grant leave to appeal ought to be granted being determined accordingly. This seemed to me to be an appropriate course to take. I directed that the letter and its attachments be marked as Exhibit 1 so as to identify them. Because the letter identifies the Applicant's name and having regard to s 91X of the Migration Act , I also directed that these materials be a confidential exhibit. 25 In SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451 the Full Court held that this subsection first required a decision-maker to make findings of fact as to the conduct, if any, in which a visa applicant had engaged in Australia. Having so done and if it is found that the visa applicant has engaged in conduct in Australia, s 91R(3) had the effect, so the Full Court decided, that the decision-maker must for all purposes disregard the person's conduct in Australia, unless the person satisfies the decision-maker that he or she has engaged in the conduct in Australia otherwise than for the purpose of strengthening the person's claim to be a refugee. The statutory command to disregard was all embracing, so it was held, with it constituting a breach of s 91R(3) and an error of law for conduct in Australia to be taken into account for the purpose of assessing whether or to what extent to accept the credibility of a visa applicant's claim in respect of events said by that person to have occurred outside Australia. 26 Should the Applicant's belated raising of an asserted violation of s 91R(3) of the Migration Act make any difference to this outcome? 27 As in SZJGV , no point concerning s 91R(3) was taken before the Federal Magistrates Court on 12 November 2007, although the learned Magistrate did observe (at [26]) that, "jurisdictional error is not apparent in relation to the Tribunal's decision". 28 There are passages in the reasons of the Tribunal which arguably do evidence that the Tribunal's findings concerning the Applicant's activities in Australia influenced conclusions reached by the Tribunal concerning the Applicant's credibility generally and in particular whether or not she had practised Falun Gong in China. I set out these passages below: I asked the applicant when she learned to do the five exercises and she said before 2000. I repeated the question and she said 1995. I asked how often she did the exercises between 1995 and 2000 and she said "Very little" sometimes once a week or once a fortnight. She said that after 2000 she did the exercises once a week. She said that she does the exercises in Australia "sometimes" sometimes once in half a month or a month. She does them at her home. I put to her that most practitioners I had spoken to exercise more frequently. She replied that everyone is different. I asked whether being a Falun Gong practitioner involved anything other than performing the exercised. She asked whether I meant in China or in Australia. She said that in Australia she takes part in "activities". These activities consist of a parade at Town Hall stationer once a month. I asked the purpose of this parade, and she said that Falun Gong practitioners get together to hold activities. She said that she does not do any other Falun Gong activities in Australia. She then added that sometimes there is a parade in Chinatown. I asked what happens at these parades and she said that they take photos and distribute materials. I asked what the purposes of taking photos was, and she said that the other practitioners take photos maybe they have lodged protection visa applications as well. I asked the applicant about the content of the Falun Gong materials that she distributes. She said "I forget". I asked whether she could tell me anything about the materials at all, but she said that she cannot remember. I asked whether she has any Falun Gong materials at home. She said that she is not sure. I asked whether she has any books about Falun Gong. She said that she does not, and that she has not seen any books about Falun Gong. I then asked her the name of the founder of Falun Gong, which she knew, and asked whether he had written any booked. She replied that he had written Zhuan Falun. She said that she had read this book before, but now she forgets what it is about. She read it in China in 2005. She read it "roughly" at her home. She did not know whether Master Li had written other books, she only read that one book. I asked her what Falun Dafa means and she said that she does not know; nor did she know that a Falun is. ... I asked the application what it would to her if she was unable to practise Falun Gong any more. She said that this was impossible because she is addicted to Falun Gong. I put to her that she only practised once a week. She replied that this is what she likes to do. It would be impossible for her not to do this it is beneficial to her health. ... I asked her to tell me anything at all about the material she distributes and she said that she does not know anything. She said that she has forgotten what was written on the pieces of paper she handed out. I asked why she handed out this material and she said that because she is a Falun Gong practitioner, sometimes she needs to distribute this material. I asked by Falun Gong practitioners need to do this and she replied that they ask other people to practise Falun Gong. I asked why she had taken photos of herself handing out this material and she said that the photos were her "material". I asked the application about the purpose of a demonstration depicted in one of the photos she submitted, and she said that it was to let other people know that they were Falun Gong practitioners. I asked about a banner that she was standing in front of in one of the photos (concerning organ harvesting) and asked what it was about. She said that she had forgotten. ... I put to the applicant that in view of her lack of knowledge of Falun Gong I did not think that she was a genuinely committed practitioner. Further, it seemed to me that the Falun Gong activities that she had engaged in, in Australia were done for the purpose of strengthening her claims to refugee status, as she demonstrated so little understanding of Falun Gong. The applicant did not respond. .. I found the applicant to be a highly unsatisfactory witness. For most of the hearing she appeared to be deliberately attempting to avoid answering my questions. Many questions had to be repeated several times before she gave a meaningful answer. From the outset, when I asked her when she started to practise Falun Gong, she provided contradictory and inconsistent answers, saying at first that it was in 2000, then that it was "in the 1990's", and then that it was in 1995. When asked to resolve this contradictory evidence, she said that she took up "formal" practice after 2000, but was then unable to explain what she meant by this term, or to specify how her practice was different before and after 2000. The applicant was able to demonstrate some knowledge of some aspects of Falun Gong, for example, the names of the exercises, the name of the founder, and the fact that practitioners are supposed to be good people and do good deeds. She was also able to demonstrate one exercise. I note, however, that this basic factual information is readily available, for example, on the Falun Gong website. Moreover, the applicant claims to practise Falun Gong "very little" in both the PRC and in Australia, providing vague and inconsistent responses as to precisely how often, ranging from once a week to once a month. ... I do not consider that the applicant displayed the level of knowledge of Falun Gong that could reasonably be expected of a practitioner of at least five years standing, who has had the opportunity to practise both inside and outside China. Having considered the oral evidence presented by the applicant at the hearing, I am not satisfied that she is now, or was prior to her departure from the PRC, a Falun Gong practitioner. The applicant's lack of knowledge of the spiritual and theoretical beliefs of Falun Gong leads me to conclude that she is not a Falun Gong practitioner. Because I do not accept that the applicant is now, or ever was a Falun Gong practitioner, I do not accept that she came to the attention of the PSB prior to her departure, or that she was ever detained in the PRC as a Falun Gong practitioner. The applicant claims to practise Falun Gong in Australia alone at home, once a week, just as she claims to have done in the PRC. The main "Falun Gong activity" in which she claims to engage in Australia is distributing Falun Gong material. However, she was unable to tell me anything about the content of the material which she claims to distribute. Nor was she able to tell me the purpose of demonstrations in which she claims to have participated, and in which she submitted photographs of herself standing in front of a banner referring to persecution of Falun Gong practitioners in China. In view of her apparent lack of knowledge or understanding of the material she claims to distribute, or the purpose of demonstrations in which she claims to have participated, I am satisfied that, to the extent that the applicant has engaged in these activities in Australia, this is not done out of a genuine commitment to Falun Gong, but rather, to strengthen her claim to be a refugee. Accordingly, this conduct must be disregarded, pursuant to s 91R(3) of the Act. In all the circumstances, I do not accept that the applicant was a Falun Gong practitioner in the PRC or that she came to the adverse attention of the authorities as such prior to her departure. I am not satisfied that she has carried out Falun Gong related activities in Australia out of genuine commitment to Falun Gong. As I do not accept that the applicant is a genuine or committed Falun Gong practitioner, there is not reason, based on the credible evidence before me, to suppose that she should seek to practise Falun Gong it she were to return to the PRC. In these circumstances I am not satisfied that the applicant has a well founded fear or persecution in the PRC as a Falun Gong practitioner. 29 On the hearing of the application I queried whether or not in the circumstances of this case the interests of justice might be served by treating argument on the application for extension of time and leave as argument on any appeal and determining the appeal instanter in the event that the procedural application was successful. The Minister did not raise any objection to that course, although his representative had not, given the shortness of notice by the Applicant as to a desire to rely upon a s 91R(3) point, had the opportunity to confirm whether an application for special leave to appeal had been made in respect of the Full Court's decision in SZJGV . I was informed earlier in the week by counsel appearing on behalf of the Minister in another case that an application for special leave had been instituted and remained pending. That this was the position was confirmed having regard to available lists published by the High Court with respect to pending special leave applications. 30 It seems to me preferable not to put the position with respect to whether there has been a breach of s 91R(3) by the Tribunal any higher at the present than "arguable". That it is arguable and the potential consequences for the Applicant in the event that an extension of time and leave to appeal were refused dispose me, as a matter of discretion, to extend time and to grant leave to appeal. Upon reflection, the better course, it seems to me, given that a special leave application is pending, is not to proceed to determine the appeal. To allow that appeal on the strength of the applicability of what was said of s 91R(3) by the Full Court in SZJGV and to return the case to the Tribunal may be to proceed on what proves to be a false legal premise. On the other hand, if special leave is refused or an appeal against the decision in SZJGV is dismissed, the appeal in this case would be able to be heard relatively quickly. It seems to me preferable to await the disposal, one way or the other, of proceedings in the High Court in SZJGV . I expressly refrain from reaching any concluded view as to whether there has been a breach of s 91R(3). 31 I dispense with the requirement that an application for leave to appeal be filed within 21 days of the date of pronouncement of the judgment of the Federal Magistrates Court on 12 November 2007 and instead extend the time for the filing of the application for leave to appeal to 7 December 2007. A grant of leave to appeal should be granted to the Applicant but it should though be restricted to an appeal on the following ground, as derived from the s 91R(3) point sought to be raised in the letter of 10 November 2008 and that agitated in SZJGV : The Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal's decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation, made in s 91R(3) of the Migration Act 1958 (Cth) that such conduct must be disregarded. 32 Because the Applicant is not legally represented, I note that the effect of O 52 r 15(1)(a)(ii) is that she must file and serve a notice of appeal expressing the ground upon which leave to appeal is granted within 21 days after today, ie not later than Monday 22 December 2008. 33 It remains to make some brief comment about the position in which the Applicant claimed to find herself so far as her visa status was concerned in the interval between the August and November hearings. I directed that a copy of the transcript of the hearing on 14 November 2008 be prepared and made available to the Minister's legal representatives with the Minister then making such response as he may be advised by 21 November as to the allegations made by the Applicant. I did so because, if accepted, the Applicant's allegations raised the spectre of possible interference by officers of the Executive Government with the Applicant's ability freely to prosecute her application and appear on its hearing on 14 November 2008. A response on behalf of the Minister was received on 21 November 2008. It seems to me that the response ought to be marked as an exhibit but, because it names the Applicant, that it ought to be a confidential exhibit and be placed in a sealed envelope marked "Minister's response to Applicant's allegations concerning visa dealings" and "Not to be opened without the leave of a court or a judge".


case_outcome: cited

case_text: On 7 December 2007, the Applicant filed in this Court an application entitled "Extension of Time to file and serve a Notice of Appeal". It is apparent from that document that the Applicant wishes to challenge the decision on 12 November 2007 by the Federal Magistrates Court to decline to set aside the earlier order of that Court dismissing her judicial review application. In an earlier interlocutory judgment in this matter, which I delivered on 6 March 2008 ( SZKCE v Minister for Immigration and Citizenship [2008] FCA 302 at [3] ), I observed: The Minister, in his written submissions, submits that the correct characterisation for the application of 7 December is that of an application for leave to appeal against a pre-hearing judgment. It seems to me that that is the correct way to regard the application of 7 December 2007. The Minister, very properly, does not seek to make any adverse issue of the form of the application, but, instead, has proceeded on the basis that it is an application for leave to appeal. I proceed therefore on the basis that the application is, in substance, an application for leave to appeal from the decision of the Federal Magistrates Court given on 12 November 2007. Strictly speaking, the application also carries with it an application for the dispensing of the time within which an application for leave to appeal ought ordinarily to be filed: O 52 r 5(2)(a) Federal Court Rules . That is because the application was filed more than 21 days after the decision of the Federal Magistrates Court was pronounced. 5 After 6 March 2008, a series of adjournments of the hearing of the application followed, for reasons which in the very particular circumstances of this case seemed to me to be warranted, for the purpose of enabling the Applicant to have the benefit of legal advice from the McArthur Legal Centre, a community legal centre based at Campbelltown in New South Wales. I gave reasons at the time for the granting of these adjournments. It is not necessary to repeat them. In the result, the application came on for hearing before me in the immigration appeals list in Sydney on 14 November 2008. 6 When the application was called on for hearing in November the Applicant first made a statement about her experiences with officials of the Department in relation to the extension of her existing visa in the interval between when the application was last before the Court in August this year and the present hearing. As was correctly submitted on behalf of the Minister, whatever may have occurred in this regard, and there was no suggestion that the solicitors firm presently acting for the Minister was involved, that was not relevant to the question of whether leave to appeal ought to be granted. It will though be necessary to make some observations on the subject later in these reasons.


case_outcome: applied

case_text: In VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 127, [26] in relation to the allowing of a new ground to be argued on appeal which was not raised below. It was there stated: 26 It is therefore necessary to consider whether it is expedient in the interests of justice to allow the new ground to be argued and determined. In the present case, the interests of justice require reference to a number of considerations, namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process. In this case, because the practical effect of an extension of time and a grant of leave to appeal would be to permit the Applicant to raise a ground not raised below it seems to me that each of the considerations mentioned in VAAC is pertinent to the exercise of the discretions to extend time and grant leave to appeal. Here, there is no question of any evidentiary embarrassment to the Minister were a s 91R(3) ground to be permitted to be raised and no other possible prejudice is evident. If the Applicant's claim for a protection visa was indeed not dealt with according to law by the Tribunal then, given the nature of her claim, there are potentially serious consequences for her in the event that she is returned to China without having the chance for the merits of her claim to be decided according to law. The prospects of the proposed additional ground will therefore be highly influential in relation to the fate of the present application. 21 Especially that is so in the present case as the explanation given by the Applicant in her supporting affidavit for why an application for leave was not filed in time was not, in itself, particularly compelling. In that affidavit she stated that "[On] 12 th of November hearing, I was not given any result of the hearing. I have not been served the court decision up till now. My natural justice has been denied. As the result I failed to lodge appeal application by the time limit. " [sic] The published reasons for judgment of the Federal Magistrates Court record that the Applicant was in attendance on 12 November 2007 when her application was dismissed for reasons apparently given ex tempore . It is not clear though whether or not those reasons for judgment were simultaneously translated for the Applicant. Further, I do bear in mind the ignorance of the English language that she has consistently displayed before me in the course of proceedings to date. 22 In deciding whether or not to reopen the judicial review proceeding it was pertinent for the Federal Magistrates Court to consider not only the explanation, if any, for the failure on the part of the Applicant to appear at the date, time and place appointed for the hearing of the judicial review application but also the merits of that application. The learned Magistrate approached the question of whether or not to reopen the proceeding in just this way. Absent the belated raising of an issue as to whether there had been a violation of the requirement in s 91R(3) of the Migration Act that conduct engaged in by a visa applicant be disregarded in certain circumstances, an application of the principles which attend whether to grant leave would, in my opinion, lead to a conclusion that leave to appeal ought to be refused. 23 As pleaded, the grounds upon which the judicial review of the Tribunal's decision was sought were doomed to fail. Had this not been the case and notwithstanding the considerable reservations the learned Magistrate so obviously had concerning the adequacy of the explanation given by the Applicant for her failure to attend court on 12 October 2007 one might have expected that the proceeding in the Federal Magistrates Court would have been reopened. If the explanation for absence was unsatisfactory but the grounds of the application were nonetheless arguable, such delay and expense as had been occasioned by the failure of the Applicant to appear on 12 October 2007 the justice of the case might have required an order for costs associated with the appearance that day being the Minister's costs in the proceeding in any event (or some other form of order for costs in favour of the Minister) but an order for reopening nonetheless. A failure so to deal with the application for reopening in such a way might very well have attracted a grant of leave. 24 Subsection 91R(3) of the Migration Act provides: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.


case_outcome: followed

case_text: In 10th Cantanae Pty Ltd v Shoshana Pty Ltd (Sue Smith Case) (1987) 79 ALR 299 , the Full Court adopted the approach that for an applicant to establish a case for contravention of s 52 of the TPA, it must prove a 'significant' or 'substantial' proportion of persons within the relevant market would likely be misled or deceived. This was adopted in National Exchange Pty Ltd v Australian Securities & Investments Commission (2004) 61 IPR 420 (per Jacobson and Bennett JJ at [70]-[71]). Whilst there may be some view to the contrary (see .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 , [25]-[26] per Finkelstein J), I will proceed to approach the question of the operation of the TPA by requiring it to be established that a significant or substantial proportion of persons who would be potential customers within Australia would be likely to be misled. Whilst some may consider this approach puts a greater burden than that considered by Hill J to be required, I am inclined to consider that the difference in approach is a matter of expression and not one of quantitative substance.


case_outcome: discussed

case_text: In Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555 , Lockhart, Wilcox and Gummow JJ stated at 604 that: ...it is not very profitable - at least in this court to spend time in determining whether a particular survey is hearsay evidence. Even if it is, ordinarily the court will have a discretion under O 33, r 3 [a substantially equivalent provision to s 190(3)] to permit the evidence to be adduced. To call the persons who responded to the survey will almost always result in appreciable expense and delay. Given the existence of a discretion, it seems more sensible to concentrate attention upon the necessity for, and reliability of, the survey evidence, rather than to worry about its compliance with rules regarding hearsay evidence which were developed before this type of problem arose. 148 Their Honours went on in Arnotts 97 ALR 555 to point out that modern market survey techniques, if undertaken by experienced and professional people, are highly likely to be accurate. That approach is a sensible one, and allows a trial judge to assess for herself or himself whether the strict application of the hearsay rule would undermine common sense or justice. 149 However, in the present circumstances, the evidence of Mr Alford is effectively required, as opinion evidence, to validate the statistical approach. I do not consider that in the circumstances, where the issue of exposure of a television audience is and has always been a matter that is or could be expected to be in issue, proper opinion evidence should not be before the Court. It is not for Bickfords to cross-examine Mr Alford to test his approach or his basis of opinion Mr Alford needed to prepare this himself for the Court. 150 I do accept that Mr Alford was sufficiently expert and professional in the collection of the relevant ratings data. I am not saying that Mr Alford's sampling methods are necessarily flawed. However, the issue in this case of the number of viewers of the television shows is one which (along with other exposures) has been in contention since the beginning of the proceeding. Hansen has had ample opportunity to comply with the Evidence Act , and without this compliance, I cannot be satisfied as to the probative value of the opinion evidence in its current form. 151 The matter to which the evidence relates is genuinely in dispute, namely the specific number of people watching a particular television show or the reach or exposure of the particular television show. In view of the potential importance of the issue and of the evidence, I do not consider that there would be unnecessary expense or delay involved in requiring adherence to the Evidence Act . The central issue in this case is reputation, and exposure of the MONSTER ENERGY mark to young male adults and other potential customers in Australia. 152 When one looks at the matter from this point of view, and specifically in light of the nature of the opinion evidence that must necessarily be relied upon, and not just raw data, I do not consider I should receive such evidence in the exercise of my discretion under s 190(3). 153 In any event, as I have said, even accepting the reach of the television programs as contended for by Hansen, I do not consider that their impact has been such to give rise to the awareness necessary in the target market or any other potential customers in Australia. 154 Whilst then there is no specific evidence as to the exact extent of television exposures, I do accept that there must be some exposure to extreme sports followers within the target demographic and to potential customers in Australia, although this cannot be quantified. However, I would be prepared to infer that many people, particularly those with an interest in a particular sport, would view these television programs in Australia. 155 The summary of the television exposures is undertaken by reference to various events occurring outside Australia, although it is to be evaluated in light of my previous observations and views as to quality and impression. 156 I turn first to motocross and supercross events. Hansen gave evidence that it has sponsored motocross/supercross athletes since 2003. Some of these athletes competed in the AMA supercross championships, which consist of weekly races between January and May each year held at different locations around the US. Hansen set out each occurrence of broadcasting of these championships in Australia. In summary, the evidence included that ESPN broadcasted the event for between one and two hours on many days in January, February, March, April, May and December in 2004, 2005, and 2006.


case_text: Bickfords contended that the documents in the three exhibits do not fall under the business records exception on the basis that they are not business records, but rather products of the business , in the sense considered by Sperling J in Roach v Page (No 15) [2003] NSWSC 939. Similarly, Bickfords submitted that the records were not internal ones and as such, as set out in ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 , they could not be regarded as business records under s 69. Additionally, Bickfords argued, the representations were prepared in contemplation of litigation and did not therefore fall within the business records exception. 133 The records referred to in s 69(1) of the Evidence Act are the documents a business generates in the course of, or for the purpose of the business, not documents which it may have or keep as the product of that business. The concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself: see Sperling J in Roach v Page [2003] NSWSC 939 ; ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [180] - [182] per Austin J.


case_text: It is important that opinion evidence sets out the process of reasoning so that the opinion satisfies the requirements of s 79. As the Full Court said in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 239 ALR 662 at [108] [109]: Further, unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated. It is for the Court to judge the reliability of, and the weight to be given to, particular evidence. Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. If not, the opinion evidence would normally be rejected under s 135. 141 Apart from the information contained in the exhibits to the affidavit, Mr Alford's opinion evidence was significant in that it purported to give evidence as to the processing, checking for quality and validating the use of the data in the final television ratings database. There was no evidence as to who did this, or how various 'standard statistical methods' were adopted by him or the nature of the 'publicity and reliable demographic information' referred to by him. Ms Inglis-Clark did not provide this information, even if this could be relied upon to support Mr Alford's material. Mr Alford's evidence is more than a view expressed about business or professional practice, and cannot be equated to that, of say, a valuer who relies upon his own experience and observation in the giving of evidence. 142 In the case of Mr Alford's evidence, it being opinion evidence, the requirements of s 79 of the Evidence Act needed to be complied with and, in my view, they have not been.


case_text: I am of the view that the correct date at which Hansen's reputation should be assessed is the point at which the relevant Bickfords' product became available to consumers: in April/May 2006. Before this date, there was no possibility that a consumer could be misled or deceived under s 52 of the TPA. In relation to the passing off claim, Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 established that the relevant date is the date of commencement by the respondent of the conduct complained of again, April/May 2006. No importance in this proceeding attaches to whether the month of April or May 2006 is specifically nominated as the relevant date. 53 Even if the correct date is the date when the impugned conduct was threatened, the relevant date would still be April/May 2006 in the circumstances of this case. 54 The meeting between Mr Hukowskyj of Bickfords and Jessica Brown of Coles on 29 November 2005 involved no threat of passing off or contravention of the TPA because Bickfords was still considering its options, and if Bickfords were to proceed with the MONSTER branding its intention was then 'to secure licensed rights to the MONSTER brand in Australasia'. That is to say, rather than threatening to pass off its product as Hansen's in November 2005, Bickfords had in mind to sell its product under licence from Hansen. 55 As to the proposed 12 January 2006 date, Bickfords relies upon an advertisement in the Australian Trade Marks Journal of acceptance of Bickfords' MONSTER ENERGY trade mark application and Mr Hukowskyj's presentation to Ms Brown of Coles. 56 In Bickfords' submissions in relation to the trade mark application it was stated: It is to be noted that it is a requirement of a valid trade mark application for an unused mark that it be based on a definite and present intention to use the mark as a trade mark in the immediate future.


case_outcome: distinguished

case_text: There was some dispute between the parties as to the relevant date at which Hansen's reputation should be assessed. Bickfords contented that the relevant date is when the impugned conduct commenced, or whenever the passing off was first threatened, whichever is earlier. Bickfords relied on the decision of Finkelstein J in Colorado Group Ltd v Strandbags Group Pty Ltd [2006] FCA 160 ; (2006) 67 IPR 628 , and argued that the impugned conduct commenced no later than 29 November 2005, being the date when Mr Hukowskyj of Bickfords met with Jessica Brown of Coles and first raised the concept of supplying a 440 mL energy drink product to Coles. At that time, Bickfords had lodged applications for registration of the MONSTER and MONSTER ENERGY names. 50 Alternatively, Bickfords argued that the relevant date should be at least 12 January 2006, by which time Bickfords had presented mock up cans to Coles and the Trade Marks Office had publicly advertised the acceptance of Bickfords' MONSTER ENERGY trade mark application. 51 Hansen, on the other hand, looks to the date on which the Bickfords products were available to consumers, namely late April or early May 2006, arguing that consumers could not be misled or deceived until the Bickfords product was available for purchase. Hansen also submitted that, in any event, Bickfords may not now retract from its defence, in which the earliest date pleaded was April 2006. Hansen dismissed Bickfords' argument concerning the publication of the acceptance of Bickfords' MONSTER ENERGY trade mark application on the basis that there was no evidence that Bickfords was proposing to use those marks other than in accordance with its plan to obtain a licence from Hansen.


case_text: Other authorities were relied upon by Hansen, but I do not consider they take the matter any further or specifically address the issue of the tender of the documents in the three exhibits, being extracts obtained by Hansen effectively of statistical information produced and created by and in the possession of OzTAM: see for example Compafina Bank v ANZ Banking Group Ltd [1982] 1 NSWLR 409 ; R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152; Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249; and Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 .


case_text: In ConAgra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 the Full Court considered a case having some similarities with the present proceeding. 30 Both parties rely on the Full Court authority of ConAgra . It is useful to first refer to the salient facts of that case: • the applicant ConAgra had marketed its HEALTHY CHOICE frozen dinner product in the United States from January 1989 and had achieved sales of HEALTHY CHOICE products from January 1989 to March 1991 amounting to $US458,210,000, accounting for 7.6% of the overall frozen food, dinner and entrée market in the United States; • ConAgra had obtained trade mark registration of HEALTHY CHOICE in the United States; • ConAgra had spent very substantial sums of money on advertising its HEALTHY CHOICE product in the United States; • ConAgra had not manufactured its HEALTHY CHOICE products other than in the United States, but had sold the products in Canada and Central America; • McCain had been manufacturing and marketing frozen food dinners in Australia; • in October 1989, the Australian marketing director of McCain travelled to the United States and Canada and noticed ConAgra's HEALTHY CHOICE product in supermarkets, obtained five examples of the packaging, took them back to Australia and reported to McCain senior management that ' The ... product 'Healthy Choice' (low cholesterol) is getting very favourable comments in the US. We should look closely at this one.'; • from May 1990, McCain conducted market research and product development for its own HEALTHY CHOICE product; • in July 1990, McCain applied for trade mark registration in Australia for HEALTHY CHOICE together with the McCain logo; • in February 1991, McCain launched three varieties of its HEALTHY CHOICE product in Australia; and • on 8 April 1991, ConAgra commenced proceedings against McCain in the Federal Court claiming that McCain's adoption of the name and get-up of ConAgra's products amounted to passing off or breach of ss 52 or 53 (c) of the TPA. 31 At first instance Hill J found that McCain's packaging suggested, to a person familiar with the ConAgra product, that there is a relationship of some kind between ConAgra and McCain or their respective products. However, both at first instance and on appeal to the Full Court, ConAgra failed to establish that McCain's sale of its HEALTHY CHOICE product in Australia amounted to passing off or breach of s 52 or s 53(c) of the TPA because ConAgra was unable to establish that there was a substantial or sufficiently substantial number of persons in Australia who were aware of ConAgra's products and for whom HEALTHY CHOICE would have signified ConAgra's product. 32 ConAgra's evidence of reputation included affidavits from ten people who had some recent connection with the United States. Some were United States citizens visiting or residing in Australia and others were Australian citizens who had spent time in the United States. To varying degrees, each deponent recognised ConAgra's HEALTHY CHOICE product. It was ultimately found that no extrapolation of any value could be made from those deponents to the Australian population in general (including foreign citizens in Australia) whether as likely buyers of frozen foods or as likely to be aware of ConAgra's product in the United States. 34 It was submitted by Bickfords that in the present case a proper analysis of the admissible evidence leads to a similar conclusion as reached by the trial judge and Full Court in ConAgra , to the effect that, at the time Bickfords launched its MONSTER ENERGY product: • there was not a sufficiently substantial number of persons in Australia who were aware of Hansen's MONSTER ENERGY product and for whom MONSTER would have signified Hansen's product; • what Bickfords really set out to do was to adopt the name and get-up of Hansen's MONSTER ENERGY product, without contravening the law, not because it wanted to have its product confused with that of Hansen, but because it was most impressed by the striking success of Hansen's product in the United States and sought to adopt it for its own products in Australia as a good idea and one likely to succeed here; and • such conduct does not amount to fraud but, in any event, a finding of fraud cannot improve Hansen's case if it cannot prove its claimed reputation. 35 On the other hand, Hansen submitted that the Court ought to find that the exposure relied upon in fact generated a substantial reputation in the MONSTER ENERGY mark in Australia. Hansen submits that the Court ought to so find on the basis: • of the extent of the exposure apparent from the evidence summarised in the form of the Schedules of Exposure before the Court; • that the strategy referred to above was in fact successfully implemented; • of evidence of the state of knowledge of members of the public; • of evidence of the efforts made by persons other than Bickfords to become involved in the distribution of the Hansen product in Australia; and • of Bickfords' own conduct and research. 36 It is clear from the principles stated in ConAgra that it is not necessary in a passing off case for an applicant to establish actual trade in the jurisdiction but, rather, it is sufficient if the applicant establishes a reputation in the jurisdiction. 37 Justice Lockhart stated in ConAgra 33 FCR at 343 that: ... it is still necessary for a plaintiff to establish that his goods have the requisite reputation in the particular jurisdiction, that there is a likelihood of deception among consumers and a likelihood of damage to his reputation. But reputation within the jurisdiction may be proved by a variety of means including advertisements on television or radio, or in magazines and newspapers within the forum. It may be established by showing constant travel of people between other countries and the forum, and that people within the forum (whether residents there or persons simply visiting there from other countries) are exposed to the goods of the overseas owner ... Certainly the law of passing off does not confer protection on the owners of goods who have no reputation in a particular jurisdiction, otherwise they would have an international monopoly with respect to the name, get-up or mark applied to their goods (and services) and may never intend to exploit it in the particular jurisdiction. It is the likelihood of deception among consumers and of damage to reputation that are the critical requirements to establish a case of passing off and they prevent any such unauthorised international monopoly being granted to a plaintiff. A quia timet injunction is a good illustration of this point for, in most cases, while such an injunction will be granted where the plaintiff has at the time of action no relevant business connection with the particular jurisdiction but has a reputation there and has established a likelihood of deception amongst consumers, he must go on to establish a likelihood of damage to his reputation and that he intends to establish in some way his business or sell his goods in that jurisdiction. 38 Justice Lockhart considered the existence of modern mass advertising, commenting at 342: It is no longer valid, if it ever was, to speak of a business having goodwill or reputation only where the business is carried on. Modern mass advertising through television (which reaches by satellite every corner of the globe instantaneously), radio, newspapers and magazines reaches people in many countries of the world. The international mobility of the world population increasingly brings human beings, and therefore potential consumers of goods and services, closer together and engenders an increasing and more instantaneous awareness of international commodities. This is an age of enormous commercial enterprises, some with budgets larger than sovereign states, who advertise their products by sophisticated means involving huge financial outlay. Goods and services are often preceded by their reputation abroad. They may not be physically present in the market of a particular country, but are well known there because of the sophistication of communications which are increasingly less limited by national boundaries, and the frequent travel of residents of many countries for reasons of business, pleasure or study. 39 As to the extent of the reputation required, his Honour said at 346: I said earlier that if a plaintiff establishes that it has a reputation in the jurisdiction then that would be sufficient to allow it to maintain an action in passing off. I have already discussed the various ways by which that reputation may be achieved, but it remains to define the extent or scope of reputation required. In my opinion the plaintiff must prove that there are within the jurisdiction in which the defendant is carrying on business a substantial number of persons who are aware of the plaintiff's product ... This was the test adopted by the primary judge (at 485 6) and in my opinion correctly. Further, it does not matter whether the persons within the relevant jurisdiction who are aware of the plaintiff's product, are resident or visitors from anywhere in the world. The reason for the requirement of a substantial number of persons is in my opinion that the reputation of a plaintiff in the forum is the source of his potential business there; his goods are known to people there who are his potential customers. For him to have in a practical and business sense a sufficient reputation in the forum requires something more than a reputation among a small number of persons, although the size and extent of the class may vary according to the circumstances of the case. Also, the law seeks to promote local competition and innovation and does not extend its protection to persons whose goods are not sufficiently known in the forum. 40 Justice French, at 377, said that: It is essential to the cause of action in passing off that the applicant's goods or services have a reputation with a substantial number of persons who would be potential customers were those goods or services to be marketed within the jurisdiction. 41 As to what is meant by the term 'substantial', his Honour said at 380: The term "substantial" is evaluative and relative to such factors as the size and distribution of the population of prospective consumers. 42 In relation to the operation of the TPA, Lockhart J (at 353) referred to the observation of Hill J that the threshold under the TPA may well be lower than it is for passing off, namely that a not insignificant number of persons could be misled. Justice Lockhart did not need to determine whether the threshold was different. Justice Gummow referred (at 372) to 'a reputation with a substantial number of persons who would be potential customers', but did not separately discuss the position under the TPA. 43 Justice French observed at 377 that the trial judge had used the term 'a not insignificant number of persons' to identify the threshold of public awareness of the applicant's mark or get up which, under the TPA, was required for the applicant to succeed. His Honour said (at 381) of the word 'insignificant': That word is normative but not for that reason inappropriate. Attention must be paid to the policy of the relevant provision which, as the heading to Pt V and many of its provisions indicate, is one of consumer protection. If the similarity complained of is commercially irrelevant having regard to the number of people who know of it, then it can be concluded that the use of the name and/or get-up complained of is not misleading or deceptive. 45 I make one further observation in relation to legal principle to be derived from ConAgra . In the absence of the establishment of reputation in Australia, fraud will not avail Hansen in its attempt to prove a case of passing off. Fraud may well be relevant in determining the relief Hansen would be entitled to, if reputation were otherwise established, or as an element in establishing the requisite misrepresentation (see ConAgra 33 FCR at 345 per Lockhart J). 46 Nevertheless, relevantly to this proceeding, deliberate copying may not always evidence an intention to deceive so as to constitute fraud in the relevant sense. 47 Justice Lockhart took the following view of McCain's deliberate adoption of the name and get-up of ConAgra's product, at 352: Merely to imitate the name of another trader or his product or his get-up does not establish a case of fraud. That appears clearly from the Pub Squash case. I have the distinct impression from my reading of the evidence in this case that what the respondent really set out to do was to apply to its own product and packaging so much of the name of the appellant's product "Healthy Choice" and get-up of its packaging as it could do, without contravening the law, not because it wanted to have its product confused with that of the appellant, but because it was most impressed by the striking success of the appellant's frozen food products in the United States and sought to adopt it for its own products in Australia as a good idea and one likely to succeed here. Nevertheless it seems the respondent wanted to sell its own product as a distinctive McCain product. ... As reputation in Australia has not been established by the appellant, for the reasons I gave earlier, the finding of fraud does not ultimately avail the appellant. 48 Justice Gummow viewed McCain's conduct similarly, at 374: ... like Lockhart J, my impression from the evidence is that there is much to be said for the view that [McCain] acted as it did, not to filch [ConAgra's] market or prospective market in Australia, but because it was impressed by the success of [ConAgra's] product in the United States and thought that a similar product was likely to succeed here. That would not amount to fraud in the required sense. Deliberate copying does not necessarily indicate fraud. 77 This can only be done through appropriate evidence. The Court must be satisfied, on the balance of probabilities, as to the existing reputation. As Gummow J reminded us, caution must be taken in treating findings found at an interlocutory level as if they would be findings which would suffice to establish reputation at trial (see ConAgra 33 FCR at 354). 231 Evidence was introduced by Bickfords in response to Hansen's claim, relevantly directed to Bickfords' own development and marketing of its product and mark. In view of my conclusion that Hansen has not demonstrated sufficient reputation to be entitled to the relief sought, it is not necessary for me to deal with these aspects of this evidence. The evidence relevant to the cross-claim I will deal with separately. However, it is convenient to make certain observations now that the Court has heard the evidence and received submissions by the parties, particularly on the question of fraud in the required sense as discussed by Lockhart and Gummow JJ in ConAgra . 232 Mr Kotses and Mr Bell gave evidence on behalf of Bickfords and were cross-examined. As I indicated previously, Mr Bell was Bickfords' Marketing Manager, and was asked by Mr Kotses to consider a brand for a new energy drink. An attack was made upon their evidence by Hansen. 233 One thing is clear which I accept from the evidence of Mr Kotses and Mr Bell, and the objective evidence; they both thought that Hansen did not have sufficient reputation in Australia in the MONSTER brand. The fact that Mr Kotses may have been aware that Hansen products were being promoted to young customers, and that he was probably aware that the Hansen mark was shown on pay TV, does not mean that he thought the mark MONSTER ENERGY had sufficient reputation in Australia. I accept his evidence in this regard when he says that he considered the public was not aware of Hansen's MONSTER ENERGY product in Australia prior to April/May 2006. Accordingly, by definition, Bickfords did not want to misrepresent the established reputation and goodwill of Hansen in Australia, as it was thought that none had thus far been established.


case_text: The evidence necessary or sufficient to establish reputation to found a case for passing off and contravention of the TPA will depend upon various factors (see eg Natural Waters of Viti Limited v Dayals (Fiji) Artesian Waters Limited (2007) 71 IPR 571 at [58]-[59]). Reputation may be inferred from a high volume of sales and extensive advertising, without any other direct evidence (see in a different context, Kenny J in McCormick & Company Inc v McCormick [2000] FCA 1335 ; (2000) 51 IPR 102 at [86] - [88] . In this proceeding, there are no sales or direct advertising or promotion of Hansen's product in Australia. Rather, the evidence relied upon is that of exposure to persons in Australia through the marketing strategy adopted by Hansen to reach its target demographic primarily in other countries.


case_title: National Exchange Pty Ltd v Australian Securities & Investments Commission (2004) 61 IPR 420


case_text: The evidence necessary or sufficient to establish reputation to found a case for passing off and contravention of the TPA will depend upon various factors (see eg Natural Waters of Viti Limited v Dayals (Fiji) Artesian Waters Limited (2007) 71 IPR 571 at [58]-[59]). Reputation may be inferred from a high volume of sales and extensive advertising, without any other direct evidence (see in a different context, Kenny J in McCormick & Company Inc v McCormick [2000] FCA 1335 ; (2000) 51 IPR 102 at [86] - [88] . In this proceeding, there are no sales or direct advertising or promotion of Hansen's product in Australia. Rather, the evidence relied upon is that of exposure to persons in Australia through the marketing strategy adopted by Hansen to reach its target demographic primarily in other countries. 79 No expert evidence concerning the reputation of Hansen's product in Australia, nor any survey evidence as to the reputation in and public recognition of the Hansen product in Australia, was sought to be led by any party, although such evidence would be potentially admissible: see Natural Waters (2007) 71 IPR at [30]. 80 As I have said, reliance has been placed by Hansen upon a strategy 'to lay a foundation' in Australia (for instance) before the Hansen product is launched. Whilst the young male adult is accepted as the target market or the main potential customer, the initial focus of the strategy is upon those who are involved in or watch extreme sports, which sports have an international focus and appeal. No direct evidence has been led as to the number of persons who fall within the potential extreme sports target customers, nor as to the number of persons who fall within the potential young male adult target customers, although there is some indication on the evidence tendered by Bickfords that there were some 1.01 million males in Australia aged between 18 and 24 over the relevant period. The Court has been asked not only to accept that the strategy of targeting extreme sports has been successful but, more importantly, has extended to the potential young male adult customers that are the potential target market through the technique of 'word of mouth' marketing described previously. I am not persuaded on the evidence that over the relevant period the foundation laid has reached the level of establishing the required reputation in the Hansen mark in Australia. 81 In this proceeding, I have taken into account not only the number of references to the get-up of Hansen's product, but also the context in which they appear, so as to evaluate properly the evidence presented and the effect it may have on the potential customers targeted, namely young male adults. Where, as in this proceeding, the get-up is striking and distinct, a reputation may be more readily and quickly obtained, but the Court cannot assume this has occurred in a market where the product has not been sold or directly advertised. It may be that in these circumstances potential customers will not necessarily associate any get-up, packaging, or design with the Hansen product. It will all depend upon the extent of the customers' own interests (say in a particular extreme sport) and his or her own previous exposure to the product.


case_title: R v Wood (1982) 76 Cr App Rep 23

case_text: In R v Wood (1982) 76 Cr App Rep 23 , the Lord Chief Justice rejected an argument that where a computer is used in the course of the production of final figures, those figures were hearsay, finding at 27 that: This computer was rightly described as a tool. It did not contribute its own knowledge. It merely did a sophisticated which could have been done manually by the chemist and was in fact done by the chemists using the computer programmed by Mr Kellie whom the Crown called as a witness.


case_title: Roach v Page (No 15) [2003] NSWSC 939

case_text: Bickfords contended that the documents in the three exhibits do not fall under the business records exception on the basis that they are not business records, but rather products of the business , in the sense considered by Sperling J in Roach v Page (No 15) [2003] NSWSC 939. Similarly, Bickfords submitted that the records were not internal ones and as such, as set out in ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 , they could not be regarded as business records under s 69. Additionally, Bickfords argued, the representations were prepared in contemplation of litigation and did not therefore fall within the business records exception. 133 The records referred to in s 69(1) of the Evidence Act are the documents a business generates in the course of, or for the purpose of the business, not documents which it may have or keep as the product of that business. The concept of a business record is an internal record, kept in an organised form accessible in the usual course of business, actually recording the business activities themselves and does not include the product of the business itself: see Sperling J in Roach v Page [2003] NSWSC 939 ; ASIC v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [180] - [182] per Austin J. 136 Hansen contended that the contrast between the OzTAM reports and publications considered by Sperling J in Roach v Page was 'stark'. Hansen contended that it was not the function of OzTAM business to publish books, newspapers or other publications for wider dissemination for advertising or promotional purposes. 137 However, the fact is that the actual documents sought to be tendered in the three exhibits are the very documents the OzTAM business is providing as part of the product of its business to third parties. They were in fact purchased by Hansen's solicitors for the purposes of tendering in this proceeding. The fact that these documents may not be widely disseminated, or that their purpose is not to advertise, does not mean that the principle expressed by Sperling J does not apply to the tender of the documents in question. 138 Accordingly, I consider that the documents in the three exhibits are not admissible as business records. I do not need to consider whether the representations relied upon were prepared in contemplation of litigation.


case_text: Hansen relied on Rook v Maynard [1993] TASSC 137 ; (1993) 126 ALR 150 , a case dealing with the common law rules of evidence, where Wright J considered the admissibility of data obtained from a computer program which traced the user's identification number, stating at 157 that: once the trace was applied to the respondent's log-on identification, the process then undertaken by the trace was entirely mechanical in that the peregrinations through the data base by that computer user were automatically traced throughout the system and were recorded and stored for retrieval in report form as soon as the trace print-out was called for. 122 His Honour found that the computer output from this process was not hearsay as it did not contain a human element. 124 The evidence which was being considered in these cases was data which had meaning only by virtue of its analysis or recording by a computer; that is, the computer was performing a function which produced data helpful to the court. Although, in Rook , the user had to log on before the computer would begin its tracing function, it was not this logging on which was the fact sought to be proved in that case. Rather, it was that the computer had undertaken certain functions, which were able to be proved by data resulting from the computer program itself. 125 In the present case what Hansen is ultimately seeking to prove by the tender is the audience reach, but derived from some data that a certain number of people in the sample homes pressed the button when near the television, thereby representing that they were 'in the room where the television was on'. I do not accept that Hansen can avoid this conclusion by asserting that it does not rely on the OzTAM data for the purpose of showing certain people were in the room at the relevant time. Undoubtedly, Hansen seeks to prove the estimated audience sizes for a particular program derived by statistical methods from the data, but such data is not automatically recorded by the meters without the human intervention of deliberately pressing the button to show a person or persons are in the room where the television is on. When the people are in the room they intend to, and do, make the representation to assert the existence of this fact, the existence of which needs to be proved to form the basis of the statistical analysis. It seems to me that the necessary reliance by Hansen on the data derived from the sample homes must involve the representation (as defined broadly in s 3 and the dictionary in the Schedule to the Evidence Act ) by a person that the person was in the room on the relevant occasion, namely when the television is operating. 126 This is the previous representation (as broadly defined) which, under s 59 of the Evidence Act , makes the source data hearsay which is then used to calculate the audience reach. It is not because the OzTAM computer processes the information that the data is hearsay, it is because the original makers of the representation (the people pressing the buttons) are not giving the evidence themselves. The fact that the source data which is fed into the OzTAM system by the users is then processed using a computer program is not germane to the question of whether the underlying evidence which has been put to the Court in this instance is hearsay or not. 127 Hansen submitted that, in the event I found that the OzTAM data was hearsay, the evidence forms part of the business records of OzTAM because the reports in question are 'the very things constituting the business activities of OzTAM' and are therefore admissible in any event. Hansen pointed to various authorities, including a number concerning market survey evidence, to support its proposition. 128 It is important to recall that I am considering the documents in the three exhibits, which are extracts, specially obtained by Hansen for the purpose of the proceeding, of the statistical analysis that is generated on an ongoing basis by OzTAM.


case_title: R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152


case_title: Shoshana Pty Ltd v 10 th Cantanae Pty Ltd (1987) 11 IPR 249


case_title: Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657


case_text: I appreciate that the hearsay rule is not to be applied inflexibly. Chief Justice Mason, in Walton v R [1989] HCA 9 ; (1989) 166 CLR 283 , in so regarding the hearsay rule stated that: (w)hen the dangers which the [hearsay] rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Justice Deane made similar comments.


case_text: I take the law to be set out in my judgment in Erduran v Minister for Immigration and Multicultural Affairs [2002] FCA 814 (2002) 122 FCR 150 at [18] - [28] . That judgment was subsequently followed at first instance in Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005. On appeal, the Full Court, at the very least, cited without disapproval the judgment in Erduran . See VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1 at [13] in the judgment of Gray J and at [33]-[34] in the joint judgment of Sundberg and North JJ.


case_title: Applicant VCAD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1005


case_title: VCAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 1


case_text: The question of whether Damilock was insolvent at material times is to be determined objectively upon the whole of the admissible evidence: Emanuel Management Pty Ltd v Foster's Brewing Group Ltd (2003) 178 FLR 1 at [73 ff]. The decision is not necessarily about the directors' knowledge or the creditors' knowledge or their expectations or suspicions of insolvency. It is a matter to be determined objectively. It is to be determined on the circumstances as they were known or ought to have been known at material times, rather than with the benefit of hindsight: Lewis v Doran [2005] NSWCA 243 ; (2005) 54 ACSR 410 at [103] .


case_text: It is generally, but not necessarily, the case that an inquiry into the insolvency or otherwise of a company at material times is assisted by considering various indicia of insolvency. In Australian Securities and Investment Commission v Plymin (No 1) [2003] VSC 123 ; (2003) 46 ACSR 126 , Mandie J at [386] referred to a number of indicia of insolvency. It is convenient to list them. I propose to consider those which are particularly relevant to the present circumstances. The indicia referred to by Mandie J were: • continuing losses; • liquidity ratios below one; • overdue Commonwealth and State taxes; • poor relationship with bank, including inability to borrow further funds; • no access to alternative finance; • inability to raise further capital; • suppliers placing company on cash on delivery or otherwise demanding special payments before resuming supply; • creditors unpaid outside trading terms; • issuing of post-dated cheques; • dishonoured cheques; • special arrangements with selected creditors; • solicitors' demands, summonses and the like; • payments to creditors of rounded amounts not reconcilable to specific invoices; and • inability to produce timely and accurate financial information to indicate trading performance and financial position, and to make reliable forecasts. In any particular case, one or more of those factors, or other factors, may have particular significance and one or more of them may not exist. The absence of one or more of those factors does not, of itself, establish solvency.


case_outcome: referred to

case_text: In considering whether Damilock was able to pay its debts as and when they became due and payable, it is appropriate to have regard to its debts in the immediate future as well as its current debts. So much is clear from the use of the words "as they become due" in s 95A of the Act: see Lewis v Doran at [107] and Box Valley Pty Ltd v Kidd [2006] NSWCA 26 ; (2006) 24 ACLC 471 at [15] , [59]-[67], and [68]-[74].


case_title: Sandell v Porter (1966) 115 CLR 66

case_text: The cash flow test of insolvency focuses on the liquidity of a business. A balance sheet test of solvency, addressing the excess of assets over liabilities, may include assets which are not readily realisable so as to permit the payment of all debts as and when they fall due. On the other hand, insolvency means more than a mere temporary lack of liquidity but, as counsel for the liquidators put it, involves "an endemic inability to pay debts as and when they become payable": see eg Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 ; Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54].


case_text: The cash flow test of insolvency focuses on the liquidity of a business. A balance sheet test of solvency, addressing the excess of assets over liabilities, may include assets which are not readily realisable so as to permit the payment of all debts as and when they fall due. On the other hand, insolvency means more than a mere temporary lack of liquidity but, as counsel for the liquidators put it, involves "an endemic inability to pay debts as and when they become payable": see eg Sandell v Porter [1966] HCA 28 ; (1966) 115 CLR 666 ; Southern Cross Interiors Pty Ltd (in liq) v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. 44 In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.


case_text: Counsel for the liquidators contended that Damilock's inventory or stock in trade was not an asset available to be realised (other than in the ordinary course of business) to meet its current debts. So much is self-evident. It does not follow that the inventory or stock in trade of what is in essence a retail trading company should not be taken into account at all in determining the solvency or otherwise of a retail trading entity. Much will depend upon the nature of the stock, the ability to realise its value, its turnaround time and the like. As Barwick CJ said in Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210 at 218: It is quite true that a trader, to remain solvent, does not need to have ready cash by him to cover his commitments as they fall for payment, and that in determining whether he can pay his debts as they become due regard must be had to his realizable assets. The extent to which their existence will prevent a conclusion of insolvency will depend on a number of surrounding circumstances, one of which must be the nature of the assets and in the case of a trader, the nature of his business. The treatment of inventory or stock in trade was a matter upon which the experts took a somewhat different view. 79 Those observations are also pertinent to the creditor's claims that Mr Lewis did not have sufficient regard to the fact that Damilock is in essence a retail trading company, so that its stock should have been given much more prominence in assessing its ability to pay its debts as and when they fell due. I accept that, depending on the evidence, trading stock may be relevant to assessing insolvency. Hence, I also accept the contention for the creditor that the decision in Rees v Bank of New South Wales [1964] HCA 47 ; (1964) 111 CLR 210 is to be understood in its particular circumstances. However, I consider the present circumstances are not dissimilar to those which were considered in Rees . 80 Clearly, by reason of its expansion interstate, Damilock had incurred very significant capital expense, and it had increased its trading stock. It had been unsuccessful in negotiating increased overdraft facilities with the ANZ to fund that expenditure. It did not have other sources of capital or deferred advances from its directors or (as I have found) externally. It appears to have funded those expenses by extending the period in which it paid its trade suppliers. It was keeping within its overdraft limits, but was not paying its trade suppliers in a timely manner. The evidence was that December and January in each year were its best trading period. That is reflected in Damilock's budget. The outcome of its trading in December 2006 and January 2007 is known. It achieved sales much less than it had budgeted in each month. There was, on its own budgeted projections, no reason to anticipate a windfall sales level in February or March 2007. Hindsight indicates that its budgeted sales in those months were also not achieved. Hence, in my view, there is no foundation to conclude that Damilock's trading stock beyond its actual sales in December 2006 and in January 2007 could have been realised in the reasonably foreseeable future to be available to meet its liabilities as and when they fell due. The short answer is that if the trading stock had that quality, it should and probably would have been realised to do so. The trading stock at cost held at 31 December 2006, excluding distribution costs, was in the order of $7.5m and by 31 January 2007 stock at cost was still of the order of $6.99m. The creditor says that at a gross profit margin of 58%, there were at December 2006 potential maximum sales of up to about $12.95m. A similar sum would be sold in November 2006. But the fact is that such sales were not made, and they were not made over the best trading period for the year. In my judgment, the commercial realities indicate that Damilock's trading stock, beyond that actually realised in December 2006 and in the latter months of 2006, and then in January 2007, was not in fact readily realisable to meet its ongoing liabilities as and when they fell due. 81 The creditor pointed out that Damilock always paid its trade creditors out of sales, rather than cash reserves, because it never had sufficient cash reserves for that purpose. That fortifies my understanding that its expansion in the latter months of 2006 was also largely to be financed out of sales, and that the increasing delay in paying its trade creditors illustrates that. If the sales levels were not achievable at a rate and at times sufficient to do so and when its debts fell due and became payable, then the point would be reached that Damilock was insolvent (in the absence of other resources being or becoming available). Its trade creditors had increased from $2.5m to $8.2m between June and December 2006. There was every reason why Damilock should, therefore, have made such sales as it could in December 2006 and in January 2007. There is also reason to conclude, as I did, that it did make such sales as it could over that period. The sales were not sufficient, as at December 2006 to meet its liabilities as and when they fell due. Nor were they in January 2007.


case_text: Another matter relevant to insolvency is the prospect of funds likely to be available from a third party, such as from a capital injection or a subordinated loan. The Court will generally be sceptical of a mere assertion of a third party's willingness to provide such support. Such asserted willingness should be cogently demonstrated as a matter of commercial reality, even if the evidence falls short of establishing a legal obligation to advance funds: see the discussion in Lewis v Doran [2004] NSWSC 608 ; (2004) 208 ALR 385 per Palmer J at [112], [113]. That topic, too, was a matter upon which there was some difference between the parties, but for reasons which are discussed below, I do not think it is significant in this instance because there is so little evidence of any real prospect of any third party capital funding becoming available. In the end result, senior counsel for the creditor did not place much weight on the prospect of an externally sourced capital injection of funds to show whether Damilock was insolvent prior to about 12 February 2007. 22 As I indicated, Mr Lewis' conclusion was that Damilock was insolvent from at least early December 2006 and certainly by 26 December 2006 and remained insolvent until 26 June 2007. He expressed that view because, in the whole of that period, Damilock had a deficiency in its cash flow needed to pay its debts which had become due and payable, based upon hypothetical bank balance assessments which he had prepared. He recognised that conclusion was based upon an assumption that Damilock's creditors were paid on 30 day terms. On that basis, he concluded that Damilock would have required an increase in its overdraft facility in excess of $6m, increasing perhaps to $8m plus by 26 June 2007, to meet its debts as and when they fell due during that period. He did alternative calculations based upon creditor payment terms of 60 and 90 days. They did not alter his conclusion, albeit that the increased overdraft facility required would have been considerably less. He also concluded on his balance sheet analysis that Damilock had a material deficiency in its working capital of $528,000 as at 31 December 2006 increasing to $4,896,000 at 30 June 2007, and that those figures were conservative as they did not take account of non-current employee entitlements such as long service leave, and depreciation. 23 Mr Keith's view was that Damilock was not insolvent prior to 12 February 2007, and became insolvent some time between that date and 14 March 2007. He identified the reasons for his conclusion, differing from that of Mr Lewis, as being: 1. Damilock was in ongoing discussions with potential equity investors at least in the period up to 12 February 2007; 2. Damilock had achieved a large net profit of $530,000 in January 2007, so as to have given Damilock's directors reason to expect that, at that time, its profitability and cash flow was improving significantly; 3. Damilock had engaged Korda Mentha, "highly regarded reconstruction and insolvency experts"; and 4. a report prepared by Korda Mentha as at 13 February 2007 did not state or express the opinion that Damilock was then insolvent, but indicated that Korda Mentha were in discussions with Damilock's directors so that Damilock was pursuing strategies to preserve the integrity of the continuing business.


case_title: Iso Lilodw' Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561

case_text: In considering the evidence on those issues, it is appropriate to have regard both to the contractual terms for payment of debts to suppliers, generally according to invoices 30 days, and to the attitude of the suppliers over time provided the time is lengthy enough to delayed payment of debts, as that may demonstrate some other arrangement between them and the debtor. I do not think that approach is inconsistent with the views of Palmer J in Southern Cross Interiors Pty Ltd v Deputy Commissioner of Taxation (2001) 53 NSWLR 213 at [54]. Nor do I think the creditor's emphasis on the "commercial realities" of the relationship between the company and its creditors is misplaced. What the arrangement was between Damilock and its creditors is a question of fact: see eg Iso Lilodw'Aliphumeleli Pty Ltd (in liq) v Commissioner of Taxation (2002) 42 ACSR 561 ; Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425 ; and Taylor v Carroll (1991) 6 ACSR 255.


case_title: Re New World Alliance Pty Ltd (receivers and managers appointed) ; Sycotex Pty Ltd v Baseler (No 2) (1994) 51 FCR 425


case_title: Taylor v Carroll (1991) 6 ACSR 255


case_text: Accordingly his Honour dismissed the application for review of the Tribunal's decision, for reasons similar to those framed by Driver FM in SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [5] . 4 The matter came before me by way of a so-called amended notice of appeal (NSD 2193 of 2005), the purported grounds of appeal being as follows: '1. The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal. 2. The appellant seeks leave to amend his appeal to challenge the delegate's decision. 3. The delegate of the Minister failed to have a regard to all of the information provided by the appellant. 4. The delegate of the Minister breached procedural fairness and natural justice.' 5 No particularity of those grounds was articulated by the appellant in the notice of appeal, nor in the course of his statements from the Bar Table. Without at least particularity or other explanation, those grounds are meaningless. It appears that he had consulted with a migration agent named Mollah, who was identified in the reasons for judgment of Mowbray FM, and that those grounds were provided by that migration agent to the appellant.


case_text: power conferred by O 52 r 38(1)(a) " must not be lightly exercised ": Van Reesema v Giameos [1979] FCA 108 ; (1979) 41 FLR 86 at 90 per Bowen CJ, Fisher and Lockhart JJ; Goldie v The Commonwealth of Australia [2004] FCA 973 at [16] per Carr J. It has further been recognised that the Court's power " to dismiss for want of prosecution is a drastic step which would only be justified by the grossest or most contumelious delay ": Hughes v Australian Competition and Consumer Commission [2004] FCA 1271 at [8] per Jacobson J. It is " exceptional for the court to dismiss a matter for want of prosecution under O 52 r 38(1)(a) ": Abraham v Attorney-General for the Commonwealth [2004] FCA 411 at [5] per Finn J.


case_title: Allesch v Maunz [2000] HCA 40 , 203 CLR 172

case_text: the powers of the Court on appeal can only be exercised if there be appellable error. And, where an appeal is in the nature of a rehearing, the appellate Court can substitute its own decision on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40 at [23] , [2000] HCA 40 ; 203 CLR 172 at 180 to 181. Gaudron, McHugh, Gummow and Hayne JJ there made the following observations in relation to the powers of a Court when entertaining an appeal by way of a rehearing (references omitted): For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. Although this was a case concerning the Family Court, s 27 of the Federal Court of Australia Act 1976 (Cth) is not materially different to the equivalent provision of the Family Law Act 1976 (Cth): Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [75] , [2001] HCA 17 ; 205 CLR 507 at 533 per Gleeson CJ and Gummow J. The " proper role of an appellate court under s 25 of the Federal Court Act ... is ordinarily to correct error ": Sobey v Nicol [2007] FCAFC 136 at [72] , [2007] FCAFC 136 ; 245 ALR 389 at 403 to 404 per Branson, Lindgren and Besanko JJ. It is not appropriate to treat an appeal "as though it were a new trial on the evidence and constrained merely by ... unassailable factual findings "; error must be demonstrated: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 at [30] , [2001] FCA 1833 ; 117 FCR 424 at 438 per Allsop J (Drummond and Mansfield JJ agreeing).


case_text: 52(5), it has been observed, is in some ways comparable to the statutory requirement that a company be wound up within six months of an application being made. And in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 consideration was given to whether that statutory requirement displaced the " slip rule ". That decision has since been applied in the context of bankruptcy proceedings in Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149 , 154 FCR 554. Spender ACJ, Dowsett and Collier JJ there observed as follows: [29] The decision of the Full Court in Re Young; ex parte Smith (1985) 5 FCR 204 establishes that there can be no extension pursuant to s 52 of the Bankruptcy Act once the petition has lapsed. However the Court (of which Lockhart J was a member) considered that there was no question of applying the slip rule in that case (at 209). In Elyard the Court addressed the slip rule, but in the context of winding up rather than bankruptcy. Although s 52 of the Bankruptcy Act serves substantially the same purpose as s 459R of the Corporations Act , there are potentially significant differences between the two sections. [30] With all respect, we are a little uncomfortable with the view, inherent in Elyard , that the slip rule may be used to extend time notwithstanding the statutory requirement that such order be made within a period of time which has elapsed. However Elyard concerns the practice of the Court and has now stood for over ten years without legislative intervention. We are reluctant to reconsider it. Although it does not directly bind us in applying s 52 of the Bankruptcy Act , to take a different approach would cause substantial confusion in insolvency practice. [31] We wish to stress, however, the importance of the policy, evidenced in both the Corporations Act and the Bankruptcy Act , that insolvency proceedings be speedily resolved, presumably for commercial reasons and for reasons of fairness. Courts exercising jurisdiction in insolvency must recognise this policy by giving priority to the hearing and determination of such matters. The parties and their legal advisers, particularly those advising petitioning creditors, must be aware of the potential problem. The decision in Elyard should not be taken as establishing an unlimited power to avoid this statutory policy. As also noted by their Honours, the question as to whether there was any " error " which attracted the power to invoke the " slip rule " is a question of fact: [2006] FCAFC 149 at [68] . With respect, the same reservation is also expressed as to ability to correct an " error " pursuant to O 35 r 7 by extending the duration of a petition in the face of the express statutory terms of s 52(5). Notwithstanding that reservation, it is the case that other authorities have endorsed the existence of a power to extend time after the initial 12 month period has expired and where there has been an accidental slip or omission in failing to make an application within the time prescribed by s 52(5): Matthews v Collett [2000] FCA 224 ; Bankstown Grammar School Ltd v Park [2000] FCA 1205 ; Roskell v Snelgrove [2008] FCA 427 , 246 ALR 175 ; Boumelhem v Commonwealth Bank of Australia [2008] FCA 1568 , 171 FCR 462.


case_text: was no dissent from the proposition that the Court has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. And an abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230. In Killoran v Duncan [1999] FCA 1574 , Gyles J thus observed: [12] Whilst there is no debate about the jurisdiction of the Court to set aside a bankruptcy notice as an abuse of process where it can be concluded that it was simply to put pressure on the debtor rather than to genuinely invoke the Court's jurisdiction, I am not satisfied that that is the position here. There is nothing to indicate that the respondent creditor does not genuinely intend to pursue the matter if there is default in complying with the notice. In my opinion, there is nothing special about abuse of process in this field, and, if a person wishes to resort to the jurisdiction of the Court for appropriate orders, then it will be an unusual case in which that will be prevented. [13] There is no evidence here of any collateral purpose or of any undue pressure being applied. It is correct, I think, that the time to judge abuse of process is the time that the bankruptcy notice is issued and that subsequent events have relatively slight relevance. They may be relevant insofar as they throw light upon circumstances which might have been appreciated and foreseen at the time of the issue of the notice. [14] If, contrary to my view, however, there were a prima facie case of abuse of process, the remedy is discretionary and, in my view, if circumstances following that time had altered significantly so that it would not be appropriate to set aside the notice, I think that the jurisdiction of the Court is wide enough to give effect to that. I have in mind here that whilst the immediate parties to the application are those with the most interest in the matter, the body of creditors generally also have an interest and I cannot be certain one way or the other about the position of solvency. It may be most unfortunate if a bankruptcy notice were set aside in circumstances where the debtor is in fact insolvent. By way of example, in Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 Jacobson J was prepared to infer that the purpose in issuing a bankruptcy notice was to put pressure on the debtor rather than to genuinely invoke the court's bankruptcy jurisdiction in circumstances where the bankruptcy notice sought payment of a debt for a small amount based on a judgment debt which was over 5 years old; where the judgment creditor was aware of the probability of solvency; and where the judgment debtor owned assets which greatly exceeded the debt. See also: Cavoli v Etl [2007] FCA 1191 at [17] per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J. It is an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.


case_title: Boumelhem v Commonwealth Bank of Australia [2008] FCA 1568 , 171 FCR 462


case_title: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 , 117 FCR 424


case_text: recently, in Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 , Tracey J has undertaken a review of the authorities. His Honour there set forth as follows his results of that analysis: [12] These authorities establish a number of relevant propositions. They are: (1) An order can be made under s 153B(1) of the Act notwithstanding that the applicant has been discharged from bankruptcy; Re Oates; ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402. (2) An applicant who seeks an annulment of his or her bankruptcy "carries a heavy burden". It is incumbent on an applicant "to place before the Court all relevant material with respect to his or her financial affairs so that the Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531. (3) In determining whether or not a sequestration order "ought not to have been made" the Court is not confined to a consideration of whether the order should have been made on the facts known to the Court at the time at which it was made. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order was made: Boles v Official Trustee in Bankruptcy [2001] FCA 639 ; (2001) 183 ALR 239 at 243; Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426. (4) A sequestration order "ought not to have been made" if, on the facts known at the time of the annulment application, the Court would have been bound not to make the sequestration order: Re Frank; ex parte Piliszky (1987) 16 FCR 396. (5) The Court will be so satisfied if it is established that the debtor was not, at the time the sequestration order was made, indebted to the petitioning creditor: Re Deriu (1970) 16 FLR 420 at 422. (6) If the Court is so satisfied, it is not precluded from annulling the bankruptcy because the bankrupt had not sought to have the default judgment set aside or failed to oppose the creditor's petition or failed to seek a review of the sequestration order: Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426. (7) The power conferred on the Court by s 153B(1) is discretionary in nature. Even if persuaded that the sequestration order ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy [2001] FCA 639 ; (2001) 183 ALR 239 at 243. (8) Considerations which may have a bearing on the exercise of discretion include unexplained delay in the making of the application, whether or not the applicant is solvent, whether or not the applicant has made full disclosure of his or her financial affairs and a failure by the bankrupt to oppose the creditor's petition and attend the hearing at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24 5; Boles at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in D. A. Hassall, "Annulment of Bankruptcy and Review of Sequestration Orders" (1993) 67 ALJ 761 at 766. The task he was undertaking was the task entrusted to him by s 153B, namely the task of considering whether the sequestration order " ought not to have been made ". Whether or not the Appellant appealed the making of the sequestration order is not of immediate relevance to the separate and discrete task entrusted by s 153B. An appeal from the making of a sequestration order is a separate process from an application under s 153B. One fundamental difference is that when undertaking the task of considering whether a sequestration order " ought not to have been made ", the Court is not confined to a consideration of only that material which was before the person making the order. As Heinrich and Bulic make clear, " the Court is not confined to a consideration of whether the order should have been made on the facts known to the Court at the time at which it was made. The Court must take account of facts, known at the time at which the sequestration order was made and at which it determines an annulment application, even if those facts were not before the Court at the time at which the sequestration order was made ". A further difference is the existence of the discretion conferred by s 153B.


case_title: Brunninghausen v Glavanics [1998] FCA 230


case_title: Cavoli v Etl [2007] FCA 1191


case_text: is for an applicant for annulment to bring himself within s 153B and to satisfy the Court that the sequestration order ought not to have been made: Pollock v Deputy Federal Commissioner of Taxation (1994) 94 ATC 4148 ; Rigg v Baker [2006] FCAFC 179 at [63] , [2006] FCAFC 179 ; 155 FCR 531 at 544 per French J (as His Honour then was). The standard of proof is that of the balance of probabilities: Edelsten v Deputy Commissioner of Taxation (Cth) (1986) 86 ALR 257.


case_title: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385


case_title: Evans v Hi-Fert Pty Ltd [2003] FCA 802

case_text: section has essentially two elements, namely the establishment of the state of satisfaction that a sequestration order ought not to have been made and, if that state of satisfaction is reached, thereafter an exercise of discretion: Rigg v Baker [2006] FCAFC 179 at [59] , [2006] FCAFC 179 ; 155 FCR 531 at 543 per French J. Those who seek an annulment carry a " heavy burden ": Re Papps; Ex parte Tapp (1997) 78 FCR 524 at 531 per O'Loughlin J; Evans v Hi-Fert Pty Ltd [2003] FCA 802 at [11] ; Samootin v Wagner [2008] FCA 1066 at [32] .