case_text: Had there been a change in the circumstances of the Appellant or any prospect that the Appellant could provide security if further time were permitted, the proceeding may well have been stayed and the time previously ordered extended. The Court undoubtedly has power to vary orders previously made, including a power to vary the time at which security is to be provided: Federal Court of Australia Act 1976 (Cth), s 56(3) ; Federal Court Rules , O 28, r 5(2). As to the practice of the Court and the circumstances in which that power may be exercised, in Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2001] FCA 1603 , Hely J observed: [11] It is clear from the terms of O28 r5(2) that the Court has power to set aside or vary the original security for costs order. The Court retains jurisdiction, because of the very nature of an interlocutory order, to set aside, vary or discharge it up to the time of the final disposition of the proceedings. However, as McLelland J recognised in Brimaud v Honeysett Instant Print Pty Ltd (1988) 6 ACLC 942 , it would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. Hence the ordinary practice is that an application to set aside, vary or discharge an order of a substantive nature made after a contested hearing in contemplation that it would operate until a final disposition of the proceedings, must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. That principle was applied by a Full Court of this Court in Darling Harbourside (Sydney) Pty Ltd v Sanirise Pty Ltd (unreported, Beaumont, Carr, Sackville JJ, 17 May 1996) to an order for the provision of security for costs. The Full Court set aside an order varying an order for the provision of security upon the basis that there had been no material change in circumstances established so as to warrant a variation of the original order. See also: Capital Webworks Pty Ltd v Adultshop.com.Limited [2008] FCA 40 at [12] per McKerracher J. 11 In the absence of any change in the position of the Appellant since the time when the orders were first made, and in the absence of any prospect that security could be provided, it is considered that the Respondents are entitled to the certainty that they seek. As also observed by Hely J in Truth about Motorways : [28] It is a serious thing to terminate proceedings when there has not been a hearing on the merits, however, there is a public interest in the conduct of judicial proceedings in conformity with orders made by the Court... See also: Mary River Cattle Station Pty Ltd v Northern Territory [2002] NTSC 11 at [26] per Martin CJ.


case_outcome: referred to

case_text: In civil litigation there is a general predisposition towards 'all cards being placed on the table'. The public interest in the due administration of justice requires that all relevant material should be available to be taken into account so that an applicant will succeed if he is entitled to do so and will fail if he is not (see Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48 ; [2005] 1 AC 610 ('Three Rivers District Council') at 647). 19 Having said that, it is also in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct (see Three Rivers District Council at 659). In this regard, a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests (per Lord Taylor of Gosforth CJ in his speech in Regina v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487 at 507). 21 If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute. There is no balancing exercise that has to be carried out (per Lord Scott of Foscote in Three Rivers District Council at 646 [25]; see also per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 at 552).


case_text: Having said that, it is also in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct (see Three Rivers District Council at 659). In this regard, a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests (per Lord Taylor of Gosforth CJ in his speech in Regina v Derby Magistrates' Court, Ex parte B [1996] 1 AC 487 at 507).


case_text: The obvious tension between the policy of encouraging full and frank disclosure by clients to their lawyers without the apprehension of being prejudiced by subsequent disclosure of the relevant communication, and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of client legal professional privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information (per Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources Limited v Commissioner of Taxation of The Commonwealth of Australia [1999] HCA 67 ; (1999) 201 CLR 49 ('Esso') at [35]). 27 It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence (per Stephen, Mason (as his Honour then was) and Murphy JJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; see also per Gleeson CJ, Gaudron and Gummow JJ in Esso at [52]).


case_text: If a communication qualifies for legal professional privilege, the privilege is absolute. It cannot be overridden by some supposedly greater public interest. It can be waived by the person, the client entitled to it, and it can be overridden by statute, but it is otherwise absolute. There is no balancing exercise that has to be carried out (per Lord Scott of Foscote in Three Rivers District Council at 646 [25]; see also per McHugh J in Commissioner of Australian Federal Police v Propend Finance Pty Limited [1997] HCA 3 ; (1997) 188 CLR 501 at 552).


case_text: At common law, what brings about a waiver of privilege is the inconsistency which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality (per Gleeson CJ, Gaudron, Gummow and Callinan JJ in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [28] and [29]). 23 The above principle was preceded by the following passage in the decision of the High Court in Mann v Carnell at [29], which was cited with approval by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [43] . The High Court said: 'Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.'


case_text: The above principle was preceded by the following passage in the decision of the High Court in Mann v Carnell at [29], which was cited with approval by the Full Court of this Court in Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [43] . The High Court said: 'Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect.' 47 As I have said, it is unnecessary for me to reach any concluded view in relation to this aspect of the matter. It is not inappropriate, however, to refer to the observations of Gleeson CJ, then sitting as the Chief Justice of New South Wales, in Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111; see also Commissioner of Taxation v Rio Tinto Ltd at [49] and [61].


case_text: Now that the test for legal professional privilege is 'dominant purpose' rather than 'sole purpose', there may well be many more cases where, upon the hearing of a disputed claim, there will be occasion for a deponent who has verified a list of documents claiming privilege to be cross-examined. Indeed, it would seem, from a procedural point of view, that if production of a document for which privilege has been claimed is sought, it would be incumbent upon the party claiming the privilege to at least read the affidavit verifying the list and thereby expose the deponent to cross-examination (see National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557 at 561 and Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'


case_text: Now that the test for legal professional privilege is 'dominant purpose' rather than 'sole purpose', there may well be many more cases where, upon the hearing of a disputed claim, there will be occasion for a deponent who has verified a list of documents claiming privilege to be cross-examined. Indeed, it would seem, from a procedural point of view, that if production of a document for which privilege has been claimed is sought, it would be incumbent upon the party claiming the privilege to at least read the affidavit verifying the list and thereby expose the deponent to cross-examination (see National Crime Authority v S (1991) 29 FCR 203 at 211; Hartogen Energy Limited (In liquidation) v The Australian Gas Light Company (1992) 36 FCR 557 at 561 and Re Compass Airlines Pty Ltd (1992) 35 FCR 447 at 462).


case_title: Re Compass Airlines Pty Ltd (1992) 35 FCR 447


case_text: It is for a party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence, but it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The Court has power to examine the documents for itself, a power which has been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence (per Stephen, Mason (as his Honour then was) and Murphy JJ in Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689; see also per Gleeson CJ, Gaudron and Gummow JJ in Esso at [52]). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'


case_text: The relevant time at which a claim for privilege is to be determined is the time when the document came into existence. The relevant question is whether the document came into existence for the dominant purpose of seeking legal advice or assistance. If the document satisfies that description, then it is privileged from production (per Tamberlin, Stone and Siopis JJ in Barnes v Commissioner of Taxation [2007] FCAFC 88 ('Barnes') at [5]). 29 In Barnes their Honours made a series of observations in relation to the sufficiency of the evidence before the trial judge to establish the legal professional privilege claim which was made in that case. Referring to an affidavit claiming privilege, their Honours said: '16. This affidavit falls far short of providing any adequate basis for claiming privilege in respect of any individual document. It consists of assertions, conclusions and generalised comments. The documents referred to are from a number of sources. ... the fact that Mr Barnes' affidavit does not clarify the reason why any specific document came into existence means that the Court is left to consider the documents on their face and determine as best it can whether the documents are privileged. This is unsatisfactory. ... 18. The authorities emphasise the need for focused and specific evidence in order to ground a claim for legal professional privilege. In Kennedy v Wallis [2004] FCAFC 337 ; (2004) 142 FCR 185 at 189, Black CJ and Emmett J reiterated the principles that verbal formulae and bare conclusory assertions of purpose are not sufficient to make out a claim for privilege: see also National Crime Authority v S (1991) 29 FCR 203 at 211 (per Lockhart J); Grant v Downs [1976] HCA 63 ; (1976) 135 CLR 674 at 689 (per Stephen, Mason and Murphy JJ). Where possible the Court should be assisted by evidence of the thought processes behind, or the nature and purpose of advice being sought in respect of, each particular document. ... Simply to show that one purpose for creation of the document was to obtain legal advice or assistance is not good enough.'


case_text: In Seven Network Limited v News Limited [2005] FCA 142 at [4] Tamberlin J said in respect of legal professional privilege: '4. The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues. 5. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. ...' (See also Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 ('Waterford') at 62, 70-71 and 81-82). 31 In respect of the application before his Honour, Tamberlin J said at [38]: '... I am cognisant of the fact that there is no bright line separating the role of an employed legal counsel as a lawyer advising in-house and his participation in commercial decisions. In other words, it is often practically impossible to segregate commercial activities from purely "legal" functions. The two will often be intertwined and privilege should not be denied simply on the basis of some commercial involvement. ...' 32 In that case, his Honour proceeded to say in respect of Mr Philip, the chief general counsel for News Limited, at [38]: '... In the present case, however, I am persuaded that Mr Philip was actively engaged in the commercial decisions to such an extent that significant weight must be given to this participation. In many circumstances where in-house counsel are employed there will be considerable overlap between commercial participation and legal functions and opinions. As can be seen from the specific rulings below, I am not persuaded that in this proceeding Mr Philip was acting in a legal context or role in relation to a number of the documents in respect of which privilege was claimed. Nor am I persuaded that the privilege claims were based on an independent and impartial legal appraisal.'


case_text: In Seven Network Limited v News Limited [2005] FCA 142 at [4] Tamberlin J said in respect of legal professional privilege: '4. The dominant purpose test has particular importance in relation to the position of in-house counsel because they may be in a closer relationship to the management than outside counsel and therefore more exposed to participation in commercial aspects of an enterprise. The courts recognise that being a lawyer employed by an enterprise does not of itself entail a level of independence. Each employment will depend on the way in which the position is structured and executed. For example, some enterprises may treat the in-house adviser as concerned solely in advising and dealing with legal problems. As a matter of commercial reality, however, both internal and external legal advisers will often be involved in expressing views and acting on commercial issues. 5. The authorities recognise that in order to attract privilege the legal adviser should have an appropriate degree of independence so as to ensure that the protection of legal professional privilege is not conferred too widely. ...' (See also Waterford v The Commonwealth of Australia [1987] HCA 25 ; (1987) 163 CLR 54 ('Waterford') at 62, 70-71 and 81-82). 33 In Waterford the court accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances, only the legal advice will be privileged. However, if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason (per Mason (as his Honour then was) and Wilson JJ at 66 and per Dawson J at 103).


case_text: Legal professional privilege is not limited to express advice about the law. Too literal a requirement of identifying legal advice as express advice about the law would place undue emphasis on formalism and undermine the privilege (per Allsop J in DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191 ; (2003) 135 FCR 151 at [52] . 35 In my opinion an in-house lawyer will lack the requisite measure of independence if his or her advice is at risk of being compromised by virtue of the nature of his employment relationship with his employer. On the other hand, if the personal loyalties, duties and interests of the in-house lawyer do not influence the professional legal advice which he gives, the requirement for independence will be satisfied. 36 In the case presently before the Court, there is no evidence, as I have earlier remarked, going to the independence of the internal legal advisers involved in the communications said to have been brought into existence for the dominant purpose of providing or receiving legal advice. There is nothing to indicate from the description of the six documents with which the Court is presently concerned that they must be documents for which privilege is properly claimed. Different considerations may apply if, say, the documents in question were opinions expressed by identified senior counsel where one might start off with the premise that by its nature the document would have privilege attaching to it. This is not such a case.


case_text: In Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm'), Lindgren J made certain observations at [41] concerning Order 15A rule 6. These included: '1. Paragraphs 6 (a) and 6 (c) pose an objective test, the opening words "there is" in each paragraph signifying "there exists"; but the "insufficiency test" of para 6 (b) has both subjective and objective aspects. 2. Although I need not explore the subjective aspect fully, it seems clear that if the evidence went so far as to show that a particular applicant was already able to decide to commence a proceeding by, for example, showing that the applicant had in fact decided to do so, para 6 (b) would not be satisfied even though the information available satisfied the objective aspect of the insufficiency test referred to below. 3. The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding". 4. In my view, the objective aspect of para 6 (b) invokes a notion of "reasonable sufficiency", the question raised being whether it is reasonable that the applicant for an order be required to take its decision without having the information to become available from inspection of the document or documents of which discovery is sought.' Much the same was said in respect of paragraph (b) of rule 6 by Emmett J in Leighton Contractors Pty Limited v Page Kirkland Management Pty Limited [2006] FCA 288 at [6] . 44 In his reasons for judgment at [46] in Alphapharm , Lindgren J said: '... I do not imply that an applicant for an order under the rule must lead evidence that without the documents sought, it will not sue. The rule is, however, directed to aiding an applicant who is having real difficulty, and reasonably so, in deciding whether to litigate because of a lack of key information, whether relating to its own case or to that of the proposed respondent, which is in the possession of the respondent. ...' 45 It would seem to me unjust to allow relief to be granted against a stranger, albeit a prospective respondent, under Order 15A rule 6 if the applicant failed to place before the Court the information which it did have, to enable a decision to be made whether to commence a proceeding in the Court to obtain the relevant relief. One of the issues will be, whether viewed objectively or subjectively, the applicant had sufficient information. 46 If information going to the ability of a person in the position of Telstra to make a decision whether to commence a proceeding in the Court against the Minister as a prospective respondent included information contained in documents which may otherwise enjoy legal professional privilege, it would seem surprising if the applicant could advance its claim for relief under Order 15A rule 6 without laying bare all of the information which it had, whether privileged or not.


case_text: As I have said, it is unnecessary for me to reach any concluded view in relation to this aspect of the matter. It is not inappropriate, however, to refer to the observations of Gleeson CJ, then sitting as the Chief Justice of New South Wales, in Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111; see also Commissioner of Taxation v Rio Tinto Ltd at [49] and [61].


case_outcome: cited

case_text: The Tribunal was required to assess the evidence before it for itself and " form a view about necessary facts, determine what the facts [were] and then by reference to those ascertained facts determine whether the decision of [the Trustee and the Insurer] was fair and reasonable in the circumstances" : Marks at [23]. See also Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at [87] - [89] per Kirby J.


case_text: In general terms, Mr Samaras contended that it was unnecessary for him to identify an illness or illnesses attached to his period of employment with the ATC and that the question for the Insurer and the Trustee was whether, at the time of their respective decisions, there was any illness or illnesses that cumulatively resulted in Mr Samaras being unlikely to ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. Mr Samaras sought to support his construction of the definition by reference to the decision of Jessup J in Auspine Staff Superannuation Pty Ltd v Henderson (2007) 14 ANZ Insurance Cases 90-127 at [63] and [64]. 36 For the reasons that follow, I reject Mr Samaras' construction of the definition of TPD. The definition contained two limbs. Both had to be satisfied. The first limb required that the 'disablement' occurred while the insured was a member: see definition of TPD in [24] above. To satisfy the first limb of the definition of TPD, Mr Samaras had to be less than 60 years of age, the disablement had to exist no later than 30 days after he ceased employment with ATC and result from an illness, accident or injury that resulted in him being continuously absent from his employment for at least 6 consecutive months. That limb of the definition required identification of the illness or illnesses suffered by Mr Samaras no later than 30 days after he ceased employment with ATC and which resulted in him being absent from work for at least 6 consecutive months. 37 If an illness or illnesses of the kind described could be identified, then the second limb of the test becomes relevant - consideration of medical and other evidence to determine whether it was unlikely that Mr Samaras would ever be able to engage in any regular remunerative work for which he was reasonably fitted by education, training or experience. This second limb requires consideration of medical and other evidence limited to the illness or illnesses identified under the first limb but not limited in time to the period prior to the cessation of Mr Samaras' employment. The Insurer and the Trustee were required to consider the medical evidence that existed at the time of their decisions, namely June 2005 and August 2005. 38 Moreover, the decision of Jessup J in Auspine Staff Superannuation did not support Mr Samaras' construction of the definition of TPD. The first point of difference is that the definition of TPD in that case was different. Not substantially different, but different. Secondly, even taking into account the differences in language between the definitions of TPD, there is nothing in the reasons for decision of Jessup J which suggested that the insurer in that case was to ignore the requirement that the disablement was to have occurred " while he [was] in the active service of the Employer ". Such a contention ignored the express words of the definition of TPD in that case and para [63] of his Honour's reasons for decision. 39 Against that background, I turn to consider Mr Samaras' various grounds of appeal to the extent to which I have not already dealt with them in considering the proper construction of the definition of TPD. 40 This ground of appeal should be dismissed. 56 In addition, it cannot be said that the Tribunal made a determination adverse to Mr Samaras' interests without giving him a reasonable opportunity to make written submissions to the Tribunal on the approach that it was contemplating: Auspine at [57] and the authorities cited. Mr Samaras, in fact, lodged 6 written submissions comprising more than 100 pages. As the Tribunal stated: "[Mr Samaras] provided over 100 pages of submissions in which he broadly argued that the Trustee and the Insurer chose irrelevant medical history and issues involving the relationship with his employer as the basis of their decision to decline his TPD application. He asked that the Tribunal confine itself to his ongoing health issues." The substance of those submissions was then summarised by the Tribunal. 57 After receiving those written submissions from Mr Samaras, the Tribunal contacted Mr Samaras on 15 May 2006 and asked him for his response submission. Mr Samaras told an officer attached to the Tribunal that he did not wish to provide a response submission and relied upon the material he had already provided to the Tribunal. This ground of appeal is dismissed. 58 Mr Samaras contended that the Tribunal, in denying Mr Samaras an opportunity to make an oral submission, " made a determination adverse to the interests of Mr Samaras to that review without giving him a reasonable opportunity and in effect denied him procedural fairness." In general terms, Mr Samaras submitted that he did not understand how the Tribunal's processes worked and, in particular, did not understand the gravity or implications of the comments about the credit of Mr Samaras made by a number of medical practitioners whose medical reports were before the Tribunal. This ground of appeal raises similar grounds to Ground (g) and should be dismissed on the same bases. Moreover, the substance of Mr Samaras' complaints arose not from the manner in which the Tribunal dealt with the matter but the fact that he did not agree with comments made by some medical practitioners about the inconsistencies in his behaviour and that he was, in the words of one doctor, " economical with the truth ". The medical reports had been provided to Mr Samaras. He was aware of them, able to comment upon and did comment upon them in the written submissions he provided to the Tribunal. The failure to provide Mr Samaras an oral hearing did not amount to a denial of procedural fairness.


case_text: Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797.


case_text: The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 43 Mr Samaras also sought to challenge the TPD test applied by the Trustee. He asserted that the Tribunal misapplied the test when it affirmed the decision of the Trustee. That complaint is, in my view, to be rejected for at least two reasons. First, it ignores the fact that the Tribunal properly described and applied the test as outlined in [41] above. Secondly, Mr Samaras misunderstood the Tribunal's reasons for decision and, in particular, sought to take one sentence of the reasons out of context. The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Pozzolanic at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Although the Tribunal did refer to the fact that the Trustee advised Mr Samaras that his TPD claim had been declined " on the basis that the overall medical evidence [did] not indicate that [he] would be unable to return to the employment for which [he was] fitted by education, training and experience " and that there was no evidence of substantial and irrecoverable pathology, the Tribunal did so in the context of refuting an allegation that there was no evidence to support the claim that the Trustee had failed to make its own assessment about whether Mr Samaras was TPD as defined. It is neither appropriate nor possible to read the Tribunal's reasons for decision in the manner suggested by Mr Samaras.


case_text: It was common ground for the purposes of this appeal that: (1) the Tribunal was not required or indeed permitted to determine whether the Trustee's decision was the correct or preferable one or whether Mr Samaras, in its opinion, suffered disablement that came within the Policy or the Deed; and (2) the relevant time for the Tribunal to consider Mr Samaras' claim for TPD benefit was the date of the decision of the Trustee: see s 37 of the SCT Act and Davis v Rio Tinto Staff Superannuation Fund Pty Ltd [2002] FCAFC 376 ; (2002) 118 FCR 170 at [15] . In the present case, that date was 9 August 2005.


case_text: The Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 48 In the present case, it cannot be said that the Tribunal's reasons for decision were formulaic. All of the medical reports were read by the Tribunal and the basis on which the Tribunal approached the question of medical reports in its reasons for decision was identified. The fact that the Tribunal referred to extracts from some medical reports and failed to mention other medical reports does not, of itself, constitute an error of law: cf Guo Wei Rong at 52-53. No error of law was identified. 49 In submissions, Mr Samaras placed considerable emphasis on the failure of the Tribunal's reasons for decision to refer to a medical report provided by his treating general practitioner, Dr Elean To dated 9 August 2005. That medical report stated: "I believe that [Mr Samaras] has a significant degree of multiple medical illnesses that warrants him unable to work, he has multiple conditions affecting his heart, lungs, mobility, back, hips, mental state, depressions, stomach etc. I believe the ongoing disability that [Mr Samaras] suffers cannot possibly allow him to return to work. He cannot be retrained in other fields of education. He will not make significant recovery in the future to enable him to work as the nature of most of his conditions are that they are irreversible or will worsen with time." 50 The failure of the Tribunal to mention this report is not surprising. It was dated 9 August 2005, the date of the decision of the Trustee, and on its face did not address or contain material relevant to either limb of the definition of TPD. The illnesses were described in only the most general of terms. No attempt was made to identify which illnesses existed when Mr Samaras was insured and which of those illnesses affected his capacity to work in August 2005. In any event, the mere failure to mention this specific report did not, of itself, constitute an error of law: cf Guo Wei Rong at 52-53. 51 The second aspect of Mr Samaras' complaint under this ground of appeal was that taking into account all of the medical reports, the Tribunal could not reasonably have found that the Trustee's decision was fair and reasonable. That contention is unfounded. Once the proper construction of the definition of TPD is identified, much of the medical evidence referred to by Mr Samaras was irrelevant because it concerned illnesses which were not present in Mr Samaras while he was insured. Those illnesses were identified by the Tribunal as hip pain, gastritis, osteopaenia and fibromyalgia. 52 In relation to the illnesses that were present in Mr Samaras while he was insured, the Tribunal listed each illness and then reviewed the medical evidence to determine whether the decisions of the Trustee and the Insurer to reject Mr Samaras' claim for a TPD benefit were fair and reasonable in their operation to Mr Samaras in the circumstances. Such an approach was consistent with authority: see [20] above. The Tribunal was not required or indeed permitted to determine whether the Trustee's decision was the correct or preferable one or whether Mr Samaras, in its opinion, suffered disablement that came within the Policy or the Deed. No error of law was identified.


case_text: Under the SCT Act , the question for the Tribunal was whether, from the Trustee's perspective, the decisions of the Trustee and the Insurer were "fair and reasonable in the circumstances" in their operation in relation to Mr Samaras having regard to the governing rules and terms of the Deed: ss 37(5) and (6) of the SCT Act ; Cameron v Board of Trustees of the State Public Sector Superannuation Scheme [2003] FCAFC 214 ; (2003) 130 FCR 122 at [38] - [43] ; National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562 at [32] to [37]; Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359 at [31] and Marks v CSS Board of Trustees [2005] FCA 797. 20 The Tribunal was required to assess the evidence before it for itself and " form a view about necessary facts, determine what the facts [were] and then by reference to those ascertained facts determine whether the decision of [the Trustee and the Insurer] was fair and reasonable in the circumstances" : Marks at [23]. See also Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at [87] - [89] per Kirby J.


case_title: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259


case_title: National Mutual Life Association of Australia Ltd v Campbell [2000] FCA 852 ; (2000) 99 FCR 562


case_title: Retail Employees Superannuation Pty Ltd v Crocker (2001) 48 ATR 359


case_title: Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (in liq) [2007] FCA 1428

case_text: Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 ; (2008) 166 FCR 398 a Full Court considered a claim by investors involved with an insolvent investment firm for a declaration that the firm's insurer was liable to it under the terms of a professional indemnity policy. No claim was made by the liquidator of the firm against the insurer. At first instance, French J had utilised O 6 r 2 to join the insurer: Ashmere Cove Pty Ltd v Knightsbridge Managed Funds Ltd (in lid) [2007] FCA 1428. On appeal the insurer argued that there was no "matter" in the requisite constitutional sense since the liquidator was not making the claim. Heerey, Sackville and Siopis JJ rejected this submission (at 411-412 [61]-[62]) and held (at 414 [73]-[74]) that the seeking of such a declaration and consequent joinder pursuant to O 6 r 2 was an appropriate exercise of discretion by the primary judge. It seems to me that similar reasoning applies in this case. The making of a declaration that Allianz is liable to Bentley Barton and Mr Taylor under the terms of the Policy and the presence of Allianz in any such suit will, effectively, resolve in the most efficient fashion, all of the issues between the parties. Accordingly, Allianz should be joined pursuant to O 6 r 2.


case_outcome: considered

case_text: application to join Allianz was made pursuant to O 6 r 2 of the Federal Court Rules , s 562 of the Corporations Act and s 6(4) of the Law Reform Act. Allianz resisted joinder on only one ground. It contended that the Policy contained an exclusion which was applicable in the present circumstances so that the claim against it would inevitably fail. The clause upon which Allianz relied was entitled "Investment Performance Exclusion" (IPE). That clause provided: We are not liable to indemnify you in respect of any claim directly or indirectly based upon, attributable to, or in consequence of: (a) depreciation (or failure to appreciate) in value of any investments, including but not limited to securities, commodities, currencies, options and futures transactions; or (b) any actual or alleged representation, advice or guarantee provided by or on your behalf as to the performance of any such investments. For the sake of clarity we agree that this exclusion does not apply to any claim arising directly out of your failure to effect a specific investment transaction pursuant to a specific instruction from a client of yours . Allianz argued that all of the losses which were claimed by the applicants were connected with a depreciation of "investments". It was submitted that a necessary step in the applicants' pleaded case was that the value of their investments had decreased from which it must follow that the losses claimed fell squarely within the terms of the exclusion. The applicants on the other hand denied that the losses which were claimed by them could all necessarily be described as "investments". Further, they submitted that the clause, properly construed, applied only to "investments" which were authorised and that the investments which had been effected by Bentley Barton and/or Mr Taylor were contrary to Mr Done's express instructions. The loss claimed from Bentley Barton is pleaded in paragraph 512 of the proposed further amended statement of claim. It says: By reason of Bentley Barton's breach of its duty of care, each of the applicants has suffered loss and damage. Particulars of loss and damage See particulars to paragraph It is important to emphasise that the Court's conclusion directed attention to the status of the investments as authorised. That approach to the question of the construction of the exclusion clause was not surprising. The same result, effectively, had been achieved in the Court's prior decision in Council of the City of Sydney v West [1965] HCA 68 ; (1965) 114 CLR 481. In this case Mr West had driven his car into the Domain car park in Sydney. He had been handed a ticket by the attendant upon entering. It contained a clause which read: 1. The Council does not accept any responsibility for the loss or damage to any vehicle or for loss of or damage to any article or thing in or upon any vehicle or for any injury to any person however such loss, damage or injury may arise or be caused. After the car was parked a rogue obtained, by deceit, a duplicate of the parking ticket for Mr West's vehicle and so armed, proceeded to drive Mr West's car to the exit where he was permitted by an attendant to drive away without further inquiry. The ticket also provided that it had to be presented for time stamping and payment before taking delivery of the vehicle. Barwick CJ and Taylor J held (at 489-490): The fact that the attendant at the exit through which the car was driven was negligent is of no consequence in the case; the act of delivery was one which was neither authorized nor permitted by the contract and in our view the appellant was not entitled to be exonerated by the exempting clause. The application of that principle to the present facts is, it seems to me, straightforward. "Investments" within the meaning of the IPE clause should be construed to mean "authorised investments". Such a construction is consonant with the final words of the clause which show clearly that the clause was not intended to cover the situation where, contrary to instructions, the insured had failed to effect a particular investment. That demonstrates that the clause is concerned to make clear that the insurers are not underwriting the insured's investment advice business. However, the clause says nothing, in my opinion, about situations where the liability of the insured is said to arise, not from the execution of instructions in relation to investments, but rather from the expenditure of client funds contrary to instructions. If it were otherwise, the exclusion would apply wherever client money was misappropriated so long as the final destination of that money was in an "investment".


case_outcome: applied

case_text: applicants, however, also submitted that the exclusion should be construed as applying only to authorised investments. This submission should be accepted. In Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32 ; (1989) 167 CLR 219 at 227 a unanimous High Court adopted a passage from Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510 in these terms: ... the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. The operation of that principle in the context of unauthorised investments was itself considered by the High Court in Darlington Futures Pty Ltd v Delco Australia Pty Ltd . In that case, a broker dealing on the commodity futures market entered into a written agreement with a client under which the broker was instructed to engage on behalf of the client in a form of commodity futures dealings known as tax straddles. An amount of trading occurred contrary to the client's instructions and in consequence heavy losses were sustained. Clause 6 of the written agreement between the broker and the client contained various acknowledgements about the exigencies of the market and concluded with the sentence: The Client finally acknowledges that the Agent will not be responsible for any loss arising in any way out of any trading activity undertaken on behalf of the Client whether pursuant to this Agreement or not, and that the Agent shall not be liable to account to the Client for any profit made by the Agent in any of the circumstances set out in clause 9 whether or not such circumstances result in a loss to the Client. Having made the statement set out above, the Court then turned to the question of how that sentence was to be construed. The Court held (at 511 per Mason, Wilson, Brennan, Deane and Dawson JJ): Turning now to cl. 6 of the contract between the appellant and the respondent, the question is whether the relevant losses arose "in any way out of any trading activity undertaken on behalf of the Client whether pursuant to this agreement or not". Read in context these words plainly refer to trading activity undertaken by the appellant for the respondent with the respondent's authority, whether pursuant to the agreement or not. It can scarcely be supposed that the parties intended to exclude liability on the part of the appellant for losses arising from trading activity in which it presumed to engage on behalf of the respondent when the appellant had no authority so to do.


case_outcome: followed

case_title: Employers Reinsurance Corporation v Ashmere Cove Pty Ltd [2008] FCAFC 28 ; (2008) 166 FCR 398


case_text: applicants, however, also submitted that the exclusion should be construed as applying only to authorised investments. This submission should be accepted. In Nissho Iwai Australia Ltd v Malaysian International Shipping Corporation, Berhad [1989] HCA 32 ; (1989) 167 CLR 219 at 227 a unanimous High Court adopted a passage from Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 ; (1986) 161 CLR 500 at 510 in these terms: ... the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity.


case_title: Ogilvie-Grant v East (1983) 7 ACLR 669

case_text: circumstances in which it would be appropriate to grant leave are not closed. In Ogilvie-Grant v East (1983) 7 ACLR 669 at 672 the following observation was made by McPherson J (with whom Campbell CJ and Sheahan J agreed): It, of course, follows that it is quite impossible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate, but in the past they have been said to include factors such as the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed. Here the proceeding is of considerable complexity. To require those claims to be dealt with by the liquidator on a proof of debt with the almost inevitable consequence of an appeal to a court in relation to any rejection of that proof of debt seems to me to be an inefficient way to proceed. More is this so where I have concluded that there is a potentially an insurance policy involved. Although the proceeding has not progressed far, it seems to me in all the circumstances that the complexity and seriousness of the proceeding, together with the existence of a potential insurance policy, justify a grant of leave pursuant to s 471B. Leave to proceed under the Bankruptcy Act


case_title: Re Rose; Ex parte Devaban Pty Ltd (unreported, Hill J, 7 October 1994)

case_text: turn then to the question of whether leave should be granted to the Applicants to proceed against Mr Taylor pursuant to s 58(3)(b) of the Bankruptcy Act . In Re Rose; Ex parte Devaban Pty Ltd [1994] FCA 1082 (unreported, 7 October 1994, Hill J) it was held (at 3-4): On the other hand, the Act does contemplate that the Court will, in an appropriate case, grant leave. In that respect a case would be an appropriate case where the proceedings proposed against the bankrupt are proceedings to which other parties are involved and for the proper conduct of which it may be necessary for the bankrupt to become a party.


case_text: principle was applied by Weinberg J in Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367 at 6 and also by Burchett J in Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884 at [3] - [4] .


case_title: Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884


case_text: is important to remember that a right to interlocutory relief depends upon the moving party being able to establish that there is a right to final relief. I consider that if the meeting on 19 August 2009 was ineffective to remove Mr Stawiczny as Managing Director of the Company and from participation in the management of the Company and that the resolution to remove him as a director of the Company proposed to be put to the meeting of members of the Company on 10 September 2009 is not a resolution that can properly be put having regard to the terms of the Shareholders' Agreement, then those matters give rise to an entitlement to relief under s 233 of the Act: cf Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199 at 218. Mr Anderson gave notice of the meeting of directors on the morning of 18 August 2009. His notice stated that the meeting was being called for 8.00am on the following day and that "if a quorum is present at that time, the meeting will proceed whether or not you are there. This is consistent with the process as per our Company Constitution ". Later that day Mr Stawiczny sent an email to Mr Anderson in which he said that it was not convenient for him to meet at that time. The meeting did not occur at 8.00am on 19 August 2009 as Mr Stawiczny was not present. It will be recalled that cl 4(c) of the Shareholders' Agreement provided that a quorum for meetings of directors was all directors. As I have noted earlier, what occurred on 19 August 2009 is controversial. There is no doubt that at some time after 11.00am-11.30am the three directors were present in the one room and that there was a dialogue about issues which particularly concerned Mr Anderson and Mr Dunford. Mr Anderson's evidence as to what occurred is disputed by Mr Stawiczny. I have referred earlier to the evidence of Mr Stawiczny and Mr Anderson.


case_title: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1

case_text: has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (ii) Those standards cannot provide an "absolute guarantee" of protection: Hovath , at 510; the measures taken to protect the lives and safety of citizens must be "reasonable": Respondents S152/2003 ; but they cannot be expected to protect against "individual and random" incidents of harm: at [119]. (iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt , at 511; and this may necessitate examining how State agents act at a "local level" regardless of the State's "leaders' good intention": see SZAIX at [37]. (iv) If the State or its agents condone, approve, tolerate: Khawar , [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar , at [29] ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31]. Having regard to what was said by members of the High Court in Khawar and in Respondents S152/2003 the Tribunal perceived its task to be that (Reasons [85]): I am required to consider whether the applicant has shown State Tolerance or condonation of domestic violence in Vanuatu. Further to that, or as part of that analysis, I am required to consider whether Vanuatu provides its citizens, or the members of the particular social group more specifically, with a reasonable level of protection from persecutory conduct. In assessing the level of protection offered, and assessing whether it is reasonable, I am required to assess that in accordance with international standards.


case_title: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

case_text: has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (iv) If the State or its agents condone, approve, tolerate: Khawar , [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar , at [29] ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31]. (v) Proof merely of maladministration, incompetence or ineptitude of State agents would not convert personally motivated domestic violence into persecution on one of the grounds set out in Art 1A(2) of the Refugee Convention: Khawar at [26]. The issue in this appeal, as it was in Khawar and SZAIX , relates to proposition (iv) above. Having regard to what was said by members of the High Court in Khawar and in Respondents S152/2003 the Tribunal perceived its task to be that (Reasons [85]): I am required to consider whether the applicant has shown State Tolerance or condonation of domestic violence in Vanuatu. Further to that, or as part of that analysis, I am required to consider whether Vanuatu provides its citizens, or the members of the particular social group more specifically, with a reasonable level of protection from persecutory conduct. In assessing the level of protection offered, and assessing whether it is reasonable, I am required to assess that in accordance with international standards. I should at the outset deal with one factual circumstance in this matter which differs from the circumstances in Khawar (which also was a domestic violence case). In Khawar the abused woman went to the police on four occasions to report the violence and no action was taken by them. In the present matter the appellant, to quote the Tribunal, "not once has ... sought the protection of the police to test [her] presumption" (ie that the authorities would not provide her with a reasonable level of protection). Some significant, though unstated, importance appears to have been given to this failure: see Reasons [86]. If the Tribunal was suggesting that actually seeking the protection of the authorities was a prerequisite for a finding of absence of adequate State protection, then it clearly was in error. If cultural norms, practices or widely held assumptions in a particular society engender a reasonable apprehension that such an approach would only exaggerate a victim's predicament, I can see no conceivable reason why the law would require a victim to expose herself to likely future harm to substantiate that she was being persecuted for Convention purposes. This in turn leads to a larger issue which reveals what is a major silence in the Reasons. While the Tribunal was aware that Vanuatu was "attempting to grapple with domestic violence" and has pursued reforms in its laws and has instituted new mechanisms, the Reasons themselves engage in no explicit evaluation of the efficacy of those mechanisms or of the traditional cultural norms and practices which, both on the appellant's case and in light of the country information, might bear on the police's willingness or ability "to take reasonable measures to protect the ... safety" of victims of domestic violence. I would emphasise in this, for example, the evidence of the role of chiefs in settling family and domestic violence disputes and of the police's utilisation of the chiefs. The absence of evaluation I have noted seems the more surprising given the Tribunal's treatment of country information a treatment which simply diluted the potential significance of what the reports clearly were intending to convey. So the State Department report that "courts occasionally prosecuted offenders using common-law assault" is expressed as "there are laws of general application against assault under which the perpetrators of domestic violence have been prosecuted". Likewise the Tribunal's observation that the country information "provides some support" for the appellants information suggesting "that the police are, in some circumstances, reluctant to intervene in domestic matters", rather mutes, for example, the State Department's comment that "police frequently were reluctant to intervene" or Freedom House's comments to like effect.


case_title: Horvath v Secretary of State for the Home Department [2001] 1 AC 489

case_text: has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (i) It is the obligation of a State to provide an adequate or reasonable armoury of laws and other mechanisms capable of providing international standards of protection: Respondent S152/2003 at [27]; Horvath , at 510; against the perpetration of violence on its citizens: Respondent S152/2003 , at [26]. (iv) If the State or its agents condone, approve, tolerate: Khawar , [31]; or are indifferent to: Respondents S152/2003 at [119]; the criminal conduct concerned, or are unwilling or unable to afford protection: Horvath at 510-511; Khawar , at [29] ... then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state [or its agents]: Khawar, at [31]. I make the above comments, not because I consider that, as a matter of merits review, a different conclusion would have been preferable. Merits review, as is well accepted, is no part of the Federal Magistrates Court function in judicial review proceedings under s 476 of the Migration Act 1958 . Rather, when one has regard (i) to the material before the Tribunal; (ii) to the issues raised by the appellant's case as to whether the police would be unwilling or unable to provide her with effective protection; and (iii) to the content and emphases of the Tribunal's reasons, I consider the only proper inference to be drawn: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360; is that, howsoever the Tribunal may have formulated its task, it did not appreciate the actual nature of, nor did it undertake, the legal inquiry it was required to undertake as to whether the protective measures which it considered were available in Vanuatu, were ones the State's agents were willing or able to utilise in providing protection. The reasons do not suggest any adequate or reasonable consideration of that issue at all and that was the issue before it on the appellant's case.


case_title: SZAIX v Minister for Immigration (2006) 150 FCR 448

case_text: has been systematic, recent authoritative analysis of when conduct giving rise to a well founded fear of serious harm at the hands of a non-State actor may constitute persecution because of the unwillingness or inability of the State (or State agents) to discharge its obligation to protect its citizens: see Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 ; Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 ; Horvath v Secretary of State for the Home Department [2000] UKHL 37 ; [2001] 1 AC 489 ; see also SZAIX v Minister for Immigration [2006] FCA 3 ; (2006) 150 FCR 448. I need only note the following for present purposes. It is drawn from the above authorities. (iii) There must be a reasonable willingness and ability by the State and its agents to invoke those laws and mechanisms against the perpetrators of violence: Respondents S152/2003 at [21]; Hovatt , at 511; and this may necessitate examining how State agents act at a "local level" regardless of the State's "leaders' good intention": see SZAIX at [37]. The issue in this appeal, as it was in Khawar and SZAIX , relates to proposition (iv) above.


case_title: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353

case_text: make the above comments, not because I consider that, as a matter of merits review, a different conclusion would have been preferable. Merits review, as is well accepted, is no part of the Federal Magistrates Court function in judicial review proceedings under s 476 of the Migration Act 1958 . Rather, when one has regard (i) to the material before the Tribunal; (ii) to the issues raised by the appellant's case as to whether the police would be unwilling or unable to provide her with effective protection; and (iii) to the content and emphases of the Tribunal's reasons, I consider the only proper inference to be drawn: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360; is that, howsoever the Tribunal may have formulated its task, it did not appreciate the actual nature of, nor did it undertake, the legal inquiry it was required to undertake as to whether the protective measures which it considered were available in Vanuatu, were ones the State's agents were willing or able to utilise in providing protection. The reasons do not suggest any adequate or reasonable consideration of that issue at all and that was the issue before it on the appellant's case.


case_title: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

case_text: am in the circumstances satisfied that the Tribunal's failure properly to consider whether the police were unwilling or unable to afford State protection constituted jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] . I likewise am satisfied that the decision of the Federal Magistrate disclosed an appellable error. Accordingly, I will order that: 1. The appeal be allowed. 2. The orders of Lindsay FM made on 3 March 2009 be set aside and in lieu thereof: 2.1 An order in the nature of certiorari to quash the decision of the Second Respondent signed on 4 October 2008 and sent on 15 October 2008 in RRT Case Number 0802686. 2.2 An order in the nature of mandamus requiring the Second Respondent to review the decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 17 April 2008 according to law. 2.3 An order that the First Respondent pay the Appellant's costs of the application. The First Respondent pay the Appellant's costs of the appeal. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 19 August 2009 Counsel for the Appellant: Mr S Ower Solicitor for the Appellant: Bourne Lawyers Counsel for the First and Second Respondent: Mr K Tredrea Solicitor for the First and Second Respondent: Australian Government Solicitor Date of Hearing: 13 August 2009 Date of Judgment: 19 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/912.html


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 7 However, I accept the submission of senior counsel for Cadbury that this aspect of Makita has not been followed in the Federal Court. The lack of proof of a substantial part of the factual basis of Dr Gibbs' opinions does not of itself render his evidence inadmissible under s 79. Such lack of proof merely goes to the weight which may be given to the opinion: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] (Branson J) and at [87] (Weinberg and Dowsett JJ), Neowarra v Western Australia (No 1) (2006) FCR 208 at [16],[21]-[27] (Sundberg J), Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] (Sackville J). This line of authority is consistent with the earlier High Court common law decision in Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple".


case_title: Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19]


case_title: R v Turner [1975] QB 834 at 841

case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 8 Nonetheless, Dr Gibbs' evidence is inadmissible because, in the words of Lawton LJ in R v Turner [1975] QB 834 at 841, "An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury." 11 In other words, the Turner rule, adopted in Murphy, is a separate requirement. Even if a proffered opinion is that of a person suitably qualified within an organized area of knowledge, if that area is not outside the experience of ordinary persons, the opinion will not be admissible. As will be seen, there are good policy reasons for this distinction.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 9 In Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 Mason CJ and Toohey J said that Lawton LJ "...expressed the basis upon which expert evidence is received in terms about which there can be no quarrel." See also Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 (Finklestein J). 11 In other words, the Turner rule, adopted in Murphy, is a separate requirement. Even if a proffered opinion is that of a person suitably qualified within an organized area of knowledge, if that area is not outside the experience of ordinary persons, the opinion will not be admissible. As will be seen, there are good policy reasons for this distinction.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 9 In Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 Mason CJ and Toohey J said that Lawton LJ "...expressed the basis upon which expert evidence is received in terms about which there can be no quarrel." See also Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 (Finklestein J).


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 10 As Ligertwood says ( Australian Evidence , 4 th ed, 2004, at 494) s 79 has been construed in a way "very close to the common law approach". The learned author cites a statement of Gaudron J in Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233, a case governed by the New South Wales equivalent of s 79 , where her Honour said (emphasis added): "The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which 'is sufficiently organized or recognized to be accepted as a reliable body of knowledge'".


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 13 A similar conclusion has been reached in England ( Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527) and Ireland ( Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] IEHC 1 at [20] ). In the words of Blackburne J in Dalgety, opinion evidence will not be admissible where "...the experience which a judge must be taken to possess as an ordinary shopper or consumer will enable him, just as well as any other, to assess the likelihood of confusion."


case_title: Symonds Cider & English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20]