case_text: the Court's power to accept an undertaking is subject to the same limitations that apply to its power to grant an injunction. In other words, the Court cannot accept an undertaking in terms which go beyond the Court's power to grant an injunction in similar terms. This proposition is well-established: Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48 ; (1981) 148 CLR 150 per Gibbs CJ, Stephen, Mason and Wilson JJ at 164-165 (' Thomson '). An undertaking to the Court is given in lieu of an injunction and the remedies for breach of an undertaking are the same as those for breach of an injunction. In Thomson , Gibbs CJ, Stephen, Mason and Wilson JJ said (at 165): an undertaking is given in lieu of an injunction and is enforceable in like manner, the principles which govern the grant of an injunction by a court must guide it in deciding whether it should accept an undertaking. Limitations which affect the court's jurisdiction or power to grant a final injunction must be observed in the acceptance of an undertaking when it is offered as a substitute for a final injunction.' In a case such as this one where the contravening conduct is neither admitted nor proved, the Court's power to grant an injunction is contained in s 80(1AA). The relevant provisions of s 80, including that subsection, are as follows: Subject to subsections (1A), (1AAA) and (1B), where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: a contravention of any of the following provisions: a provision of Part IV, IVA, IVB, V or VC; section 75AU or 75AYA; attempting to contravene such a provision; aiding, abetting, counselling or procuring a person to contravene such a provision; inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision; being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or conspiring with others to contravene such a provision; Court may grant an injunction in such terms as the Court determines to be appropriate. ... Where an application for an injunction under subsection (1) has been made, whether before or after the commencement of this subsection, the Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceedings, whether or not the Court is satisfied that a person has engaged, or is proposing to engage, in conduct of a kind mentioned in subsection (1). ... The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised: whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; whether or not the person has previously engaged in conduct of that kind; and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind. ... The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised: whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; whether or not the person has previously refused or failed to do that act or thing; and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.' Secondly, the Court's power to grant an injunction in the case of a contravention of the Act is contained exclusively in s 80 of the Act and no reliance can be placed on s 23 of the Federal Court of Australia Act 1976 (Cth): Thomson per Gibbs CJ, Stephen, Mason and Wilson JJ at 161-162; Foster v Australian Competition and Consumer Commission [2006] FCAFC 21 ; (2006) 149 FCR 135 (Ryan, Finn and Allsop JJ) at 145 [22] (' Foster' ).


case_outcome: applied

case_text: In his reasons for judgment in Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm'), Lindgren J made certain observations concerning Order 15A rule 6 at [41] as follows: '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. 5. If the insufficiency test is satisfied, a second question will arise, namely, whether the Court's discretion should be exercised in favour of the making of an order. 6. The questions posed by rule 6 and referred to above are to be answered in the context of an adversary system of forensic contest in which a proposed respondent is ordinarily entitled to withhold its evidence, certainly prior to the commencement of proceedings. 7. The questions are also to be answered in the light of the nature of the "cause of action" contemplated and the range of information potentially available in respect of a cause of action of that kind. 8. ... in my opinion rule 6 is not necessarily rendered unavailable by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief. This is made clear by the reference in para (a) to the existence of "reasonable cause to believe that the applicant has ... the right to obtain relief ..." (emphasis supplied). It would impose an artificial constraint on rule 6, not supported by its terms or purpose, to exclude, a priori , all cases in which the insufficiency of the information possessed by the applicant to enable a decision to be made whether to litigate is due to a matter of "defence" which would defeat the prima facie case. 9. Rule 6 does not provide a means by which an applicant will be enabled to have available to it every document which would assist it in deciding whether to litigate. If that were the intention, paras (a) and (c) would stand alone and the additional condition set out in para (b) would not be necessary. 10. Paragraph 6 (b) contemplates that after making all reasonable inquiries, the applicant has come up against a problem, namely, that it is lacking a piece of information or pieces of information reasonably necessary to enable it to decide whether to commence a proceeding.' 58 In St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Hely J stated a series of propositions which his Honour considered had emerged from the authorities in relation to the proper application of Order 15A rule 6 at [26] as follows: '(a) the rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; 20 IPR 79 at 85; Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 ; BC9902167 at [27]; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at 11 [38] ; 167 ALR 385 at 367; [1999] FCA 1584 ; 47 IPR 21 at 30. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at 202 3 [5]; [1999] FCA 886 ; 164 ALR 330 at 332; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one: Hooper at FCR 11 12 [39]; ALR 367; IPR 30; Malouf v Malouf [1999] FCA 710 ; BC9902833 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 [24]; 49 IPR 25 at 31; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; BC9602085 at 23. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at ALR 541-2 [24]; IPR 31; Paxus Services at ALR 733; IPR 85; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215 ; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court: Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR at 285 [21]; Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6, Airservices Australia at FCR 202 3 [5]; ALR 332 (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23 4, Hooper at FCR 12 [40]; ALR 367; IPR 31. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition": Paxus Services at ALR 733; IPR 85. Indeed O 15A r 6 "expressly contemplates" what once might have been castigated as "fishing": Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at 143 [27] ; [2001] FCA 60 ; 182 ALR 264 at 270-1; 20 IPR 79 at 85. As Burchett J commented in Paxus Services , the rule is (at ALR 733; IPR 85): ... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...' 77 Order 15A rule 6 is 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. It requires evidence demonstrating that the applicant for relief is on the horns of a dilemma: whether to sue or not to sue (per Lindgren J in Alphapharm at [45]). 78 Telstra claims that there is reasonable cause to believe that it may have, or already has, the right to obtain judicial review of the relevant administrative action involved in the allocation of an additional $358 million to the Infrastructure Programme, for which the Minister is responsible, without affording all applicants for the base funding of up to $600 million an opportunity to submit proposals as to how a grant to them of $958 million could have been spent to secure the desired outcome and meet the original benchmarks and more. 79 It wishes to mount an argument that it was denied procedural fairness. 125 Given Telstra's predisposition, as evidenced by the memorandum, to in effect 'sue regardless' it seems that the subjective aspect of the rule 6(b) requirement could not be satisfied in this case. The evidence does not, in my opinion, demonstrate that, to use Lindgren J's expression 'Telstra is on the horns of a dilemma: whether to sue or not'. 126 This brings me to the question of discretion. No question of delay arises. It was reasonable for Telstra to await Clayton Utz's response of 26 July 2007 to its Group General Counsel, Legal Services' letter of 19 July 2007 before making its Order 15A rule 6 application, which, in its original form, was filed on 3 August 2007. 127 However, I consider that the evidence of Telstra's 'sue regardless' disposition in respect of the award of $958 million of funding to OPEL Networks Pty Ltd is a matter properly taken into account in considering the proper exercise of the Court's discretion, as is the further observation contained in the internal draft memorandum, namely: 'If we are successful in getting documents this way, there will be limits on how they are used (eg only for litigation purposes, not in the media), but the hearing itself will be public and would presumably of itself be of media interest.'


case_text: In St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Hely J stated a series of propositions which his Honour considered had emerged from the authorities in relation to the proper application of Order 15A rule 6 at [26] as follows: '(a) the rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; 20 IPR 79 at 85; Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 ; BC9902167 at [27]; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at 11 [38] ; 167 ALR 385 at 367; [1999] FCA 1584 ; 47 IPR 21 at 30. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at 202 3 [5]; [1999] FCA 886 ; 164 ALR 330 at 332; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one: Hooper at FCR 11 12 [39]; ALR 367; IPR 30; Malouf v Malouf [1999] FCA 710 ; BC9902833 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 [24]; 49 IPR 25 at 31; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; BC9602085 at 23. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at ALR 541-2 [24]; IPR 31; Paxus Services at ALR 733; IPR 85; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215 ; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court: Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR at 285 [21]; Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6, Airservices Australia at FCR 202 3 [5]; ALR 332 (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23 4, Hooper at FCR 12 [40]; ALR 367; IPR 31. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition": Paxus Services at ALR 733; IPR 85. Indeed O 15A r 6 "expressly contemplates" what once might have been castigated as "fishing": Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at 143 [27] ; [2001] FCA 60 ; 182 ALR 264 at 270-1; 20 IPR 79 at 85. As Burchett J commented in Paxus Services , the rule is (at ALR 733; IPR 85): ... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...'


case_outcome: referred to

case_text: Whilst Order 15A makes no provision as to the means whereby discovery should be given by a party such as the Minister to a party such as Telstra, it seems clear to me that discovery must be given in the manner for which Order 15 rule 2(2) provides, namely: '2(2) Unless the Court or a Judge orders otherwise, a party must give discovery by serving: (a) a list of documents required to be disclosed; and (b) an affidavit verifying the list.' Mansfield J expressed the same view in Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 at [2] . 62 The form of the list of documents may, in my opinion, be taken to have been regulated by Order 15 rule 6, which relevantly provides: '6(1) A list of documents required by or under this Order shall, unless the Court otherwise orders, be in accordance with Form 22 and conform to the requirements of this rule. (2) A list of documents shall enumerate the documents which are ... in the possession ... of the party making the list. (3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified. ... (8) Where a party making a list of documents has a solicitor in the proceeding, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.' 63 Form 22, of course, provides for documents to be enumerated one by one in either Schedule 1 Part 1, Schedule 1 Part 2 or Schedule 2 of the relevant list. The operative words in Form 22 are: '1. The party has in his possession ... the documents enumerated in Schedule 1. 2. The documents enumerated in Part 2 of Schedule 1 are privileged from production on the ground ... ...'


case_outcome: cited

case_text: An order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may conclude the fate of the particular application in which it is made, is interlocutory only (per Taylor J in Hall v The Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 ('Hall') at 440; see also per Owen J at 447). 67 It is not of the essence of an interlocutory order that it is one made in the course of a pending action or suit (per Taylor J in Hall at 440; see also per Owen J at 447). 68 An order made on an application in proceedings preliminary to the bringing of an action, which does not preclude a further application to like effect being brought, is interlocutory (per Taylor J in Hall at 440; see also per Owen J at 447). 69 The character of proceedings such as an application under Order 15A rule 6 may be of more significance than the result for an applicant, in determining whether an order is interlocutory or not (per Windeyer J in Hall at 445).


case_text: In St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Hely J stated a series of propositions which his Honour considered had emerged from the authorities in relation to the proper application of Order 15A rule 6 at [26] as follows: '(a) the rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; 20 IPR 79 at 85; Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 ; BC9902167 at [27]; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at 11 [38] ; 167 ALR 385 at 367; [1999] FCA 1584 ; 47 IPR 21 at 30. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at 202 3 [5]; [1999] FCA 886 ; 164 ALR 330 at 332; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one: Hooper at FCR 11 12 [39]; ALR 367; IPR 30; Malouf v Malouf [1999] FCA 710 ; BC9902833 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 [24]; 49 IPR 25 at 31; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; BC9602085 at 23. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at ALR 541-2 [24]; IPR 31; Paxus Services at ALR 733; IPR 85; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215 ; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court: Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR at 285 [21]; Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6, Airservices Australia at FCR 202 3 [5]; ALR 332 (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23 4, Hooper at FCR 12 [40]; ALR 367; IPR 31. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition": Paxus Services at ALR 733; IPR 85. Indeed O 15A r 6 "expressly contemplates" what once might have been castigated as "fishing": Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at 143 [27] ; [2001] FCA 60 ; 182 ALR 264 at 270-1; 20 IPR 79 at 85. As Burchett J commented in Paxus Services , the rule is (at ALR 733; IPR 85): ... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...' 70 An order made in an application under Order 15A rule 6 will be interlocutory, given that it will not preclude a further application (per Beaumont, Lee and Dowsett JJ in Malouf v Malouf [1999] FCA 284 ; (1999) 86 FCR 134 at 143). 71 Discovery against a prospective respondent is invasive. In Hughes' 'Equity Draftsman' (2 nd Edition) (1828) Vol 1 at page 483 the learned author said: 'As the object of a court of equity in compelling a discovery is either to enable itself or some other court to decide on matters in dispute between the parties, the discovery sought must be material either to the relief prayed by the bill, or to some other suit actually instituted or capable of being instituted. If therefore the plaintiff in a bill for discovery does not show by his bill a title to sue the defendant in some other court, or that he is actually involved in litigation with the defendant or liable to be so, and does not also show that the discovery which he prays is material to enable him to support or defend a suit, he shows no title to the discovery, and consequently a demurrer will hold.' (footnotes omitted) 72 To like effect Story 'Commentaries on Equity Jurisprudence, As Administered in England and America' (12 th Edition) (1877) Vol II at page 728 paragraph 1483 states: '... in general, it seems necessary, in order to maintain a bill of discovery, that an action should be already commenced in another court, to which it should be auxiliary. There are exceptions to this rule, as where the object of discovery is to ascertain who is the proper party against whom the suit should be brought. But these are of rare occurrence.' (footnote omitted)


case_title: Cardale v Watkins (1820) V Maddock 18

case_text: In Cardale v Watkins (1820) V Maddock 18, a case where a bill for discovery was sought but for no stated purpose, Vice Chancellor, Sir John Leach observed: 'a Court of Equity does not compel Discovery for the mere gratification of curiosity, but in aid of some other Proceeding either pending or intended, and ... there must be Allegations to that effect.' 74 In Laussat's edition of 'Fonblanque on Equity' (1831) Vol 1, Chapter 1, paragraph 3 note (f) reference was made to those circumstances in which resort may be had to the 'extraordinary powers of a court of equity' to compel discovery. 75 In Story Vol 1 at paragraph 74 it is stated: '... to maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill, that the facts are material to the plaintiff's case, and that the discovery of them by the defendant is indispensable, as proof; for if the facts lie within the knowledge of witnesses, who may be called in a court of law, that furnishes a sufficient reason for a court of equity to refuse its aid. The bill must, therefore, allege (and if required, the fact must be established) that the plaintiff is unable to prove such facts by other testimony. ...' (footnote omitted)


case_text: In St George Bank Ltd v Rabo Australia Ltd (2004) 211 ALR 147 Hely J stated a series of propositions which his Honour considered had emerged from the authorities in relation to the proper application of Order 15A rule 6 at [26] as follows: '(a) the rule is to be beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the court, exercised in the particular circumstances of each case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733; 20 IPR 79 at 85; Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 ; BC9902167 at [27]; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established: Hooper v Kirella Pty Ltd [1999] FCA 1584 ; (1999) 96 FCR 1 at 11 [38] ; 167 ALR 385 at 367; [1999] FCA 1584 ; 47 IPR 21 at 30. Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves: Airservices Australia v Transfield Pty Ltd [1999] FCA 886 ; (1999) 92 FCR 200 at 202 3 [5]; [1999] FCA 886 ; 164 ALR 330 at 332; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one: Hooper at FCR 11 12 [39]; ALR 367; IPR 30; Malouf v Malouf [1999] FCA 710 ; BC9902833 at [16]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 [24]; 49 IPR 25 at 31; Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd [1996] FCA 391 ; BC9602085 at 23. Further, the words "or may have" cannot be ignored. The applicant does not have to make out a prima facie case: Quanta Software at ALR 541-2 [24]; IPR 31; Paxus Services at ALR 733; IPR 85; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of the mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action: John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 ; BC200403021 at [13], [14], [17] and [73]; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe: Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 215 ; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court: Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6. Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent's breach and the likely quantum of any damages award: CGU Insurance Ltd v Malaysia International Shipping Corp Berhad (2001) 187 ALR at 285 [21]; Quanta Software at ALR 543 [33]-[34]; IPR 32-3, Alphapharm at 24 6, Airservices Australia at FCR 202 3 [5]; ALR 332 (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made: Minister for Health at [44]; Alphapharm at 23 4, Hooper at FCR 12 [40]; ALR 367; IPR 31. The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition": Paxus Services at ALR 733; IPR 85. Indeed O 15A r 6 "expressly contemplates" what once might have been castigated as "fishing": Bailey v Beagle Management Pty Ltd [2001] FCA 60 ; (2001) 105 FCR 136 at 143 [27] ; [2001] FCA 60 ; 182 ALR 264 at 270-1; 20 IPR 79 at 85. As Burchett J commented in Paxus Services , the rule is (at ALR 733; IPR 85): ... designed to enable an applicant, in a situation where his proof can rise no higher than the level the rule describes, to ascertain whether he has a case against the prospective respondent ...' 76 In relation to the power conferred on the court by Order 15A rule 6 of the Rules Wilcox, Sackville and Katz JJ held in Hooper v Kirella Pty Ltd; Transfield Pty Ltd v Airservices Australia [1999] FCA 1584 ; (1999) 96 FCR 1 at [59] that the Court has the power to grant relief against a prospective respondent even though proceedings claiming substantive relief may never be instituted, if the applicant has asserted a claim arising under a law of the Parliament and done so in proceedings instituted, in the Court under the relevant rule (see also at [61]).


case_text: In Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited [1998] HCA 49 ; (1998) 194 CLR 247 ('Bateman's Bay') the first respondent, the Aboriginal Community Benefit Fund Pty Ltd, operated a contributory funeral benefit fund business catering for members of the New South Wales aboriginal community. The second respondent, the Aboriginal Community Benefit Fund No 2 Pty Ltd, operated a contributory life insurance business for members of the same community. The first appellant, the Bateman's Bay Local Aboriginal Land Council, was a body corporate constituted under s 6 of the Aboriginal Land Rights Act 1983 (NSW). Its functions were set out in s 12(1) of that Act. The second appellant, the New South Wales Aboriginal Land Council, was a body corporate constituted under s 22 of the same Act. Its functions were set out in s 23(1) of that Act. There was no power permitting the second appellant to expend monies by providing a subsidy, guarantee or indemnity. By a deed of trust between the first appellant as trustee, the second appellant as guarantor and the State of New South Wales, the New South Wales Aboriginal Land Council's Funeral Contribution Fund was established. The second appellant provided an indemnity to the first appellant in respect of any liability the first appellant might suffer in connection with the New South Wales Aboriginal Land Council's Funeral Contribution Fund. 85 The respondents instituted proceedings in the Supreme Court of New South Wales seeking an order restraining the appellants from carrying on the New South Wales Aboriginal Land Council's Funeral Contribution Fund. At first instance, McLelland CJ in Eq held that the respondents lacked standing to maintain the proceedings. That decision was reversed on appeal to the New South Wales Court of Appeal. The matter was remitted to McLelland CJ in Eq for hearing. His Honour proceeded to make declarations and grant injunctions in the respondents favour. The appellants proceeded to appeal against the decision of the Court of Appeal in respect of standing. Special leave to appeal was granted on the condition that the appellants withdrew their appeal against McLelland CJ in Eq's decision on the merits. The High Court dismissed the appeal in respect of standing, with costs. 86 It held that the public interest in equity may be vindicated at the suit of a party with a sufficient material interest in the subject matter. 87 At [51]-[52], Gaudron, Gummow and Kirby JJ stated their conclusions as follows: '51 ... the use of equitable remedies to ensure compliance by the executive and legislative branches of government with the requirements of the Constitution should not be overlooked. No doubt special considerations may apply in that context, but it would be an odd result if the requirements for standing outside the constitutional sphere were more stringent than within it. Prejudice to a sufficient material interest, such as that in the practice of a profession or occupation, will suffice in constitutional cases. 52 Here, the respondents had an interest in the observance by the appellants of the statutory limitations upon their activities with respect to contributory funeral funds which, as a matter of practical reality, was immediate, significant and peculiar to them. The primary judge found that because the parties would be operating in substantially the same limited market it was highly probable that, if not restrained from commencing and concluding their activities, the appellants would cause severe detriment to the business of the respondents. That, in the circumstances of this litigation, gave the respondents a sufficient special interest to seek equitable relief.' (footnotes omitted) 88 McHugh J also concluded that the appeal should be dismissed. In his reasons he said at [83], [86] and [103]: '83 The enforcement of the public law of a community is part of the political process; it is one of the chief responsibilities of the executive government. In most cases, it is for the executive government and not for the civil courts acting at the behest of disinterested private individuals to enforce the law. There are sometimes very good reasons why the public interest of a society is best served by not attempting to enforce a particular law. To enforce a law at a particular time or in particular circumstances may result in the undermining of the authority of the executive government or the courts of justice. In extreme cases, to enforce it may lead to civil unrest and bloodshed. ... 86 The decision when and in what circumstances to enforce public law frequently calls for a fine judgment as to what the public interest truly requires. It is a decision that is arguably best made by the Attorney-General who must answer to the people, rather than by unelected judges expanding the doctrine of standing to overcome what they see as a failure of the political process to ensure that the law is enforced. ... ... 103 As Australian Conservation Foundation and Onus show, a special interest in the subject matter of the proceedings is sufficient to give standing in a case such as the present. The subject matter of this suit is the legality of the Councils' arrangements setting up the State Fund. The respondents had a special interest in that subject. The allegedly unlawful activities of the appellant affected them financially and to an extent that exceeded the injury to any other individual. Moreover, if the arrangement between the appellants was illegal, the continuing financial injury to the respondents, caused by the arrangement, would be remedied by a grant of the injunction they sought.'


case_text: Given the separation of powers between the Legislature, the Executive and the Judiciary for which the Constitution of the Commonwealth of Australia ('the Constitution ') provides, the opportunity for judicial review of administrative action is not unlimited (see per McHugh and Gummow JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 ('Lam') at [76]-[77]). 90 Under s 64 of the Constitution the Governor-General was empowered to appoint 'officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish'. Such officers were to 'be members of the Federal Executive Council' and to 'be the Queen's Ministers of State for the Commonwealth'. The Minister is such an officer. 91 Under s 71 of the Constitution , the judicial power of the Commonwealth was vested in the High Court of Australia and, relevantly, 'in such other federal courts as the Parliament creates'. 94 The jurisdiction under s 75(v) of the Constitution does not exist for the purpose of enabling the judicial branch of government to impose upon the executive branch its ideas of good administration (per Gleeson CJ in Lam at [32]). 95 Constitutional writ relief under s 75(v) of the Constitution is discretionary. (See Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57 ; (2000) 204 CLR 82 ('AALA') at [5], [18]-[62], [145]-[150], [172] and [217]; see also Lam at [25] per Gleeson CJ.) 97 Lam concerned a Ministerial decision to cancel a visa held by a person with a substantial criminal history, under s 501(2) of the Migration Act 1958 (Cth). At the time when the cancellation of his visa was under consideration Lam was incarcerated, having been sentenced to imprisonment for eight years for trafficking in heroin. He was notified that contact was being sought with his children's carers to assess the possible effect upon them of a cancellation of his visa. As it transpires, the relevant Minister made no attempt to contact the carers. 98 The High Court dismissed Lam's application for prohibition and certiorari in respect of the relevant Ministerial decision to cancel his visa. Lam alleged that the relevant Minister failed to accord him procedural fairness/natural justice by failing to make the foreshadowed contact with the carer of his children. 99 Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation (per Gleeson CJ in Lam at [34]). 100 A failure to observe an expectation reasonably attributable to a party such as Telstra does not reasonably (perhaps better expressed as 'necessarily') found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in the particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process, not the decision. (Per McHugh and Gummow JJ in Lam at [105]). 101 On no view can the doctrine of 'legitimate expectation' give rise to substantive rights rather than to procedural rights (per Callinan J in Lam at [148]; see also per Gleeson CJ at [28]). 102 The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in AALA at [62]; see also per McHugh and Gummow JJ in Lam at [48]). 103 Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice (per Gleeson CJ in Lam at [37]). 104 If, in making a decision, a decision-maker is obliged to act with procedural fairness, the decision-maker must give a sufficient opportunity to those directly affected by the decision to present material and argument before the decision is made (per Hayne J in Lam at [114]).


case_outcome: considered

case_text: In MBA Land Holdings Pty Ltd v Gungahlin Development Authority (2000) 206 FLR 120 ('Gungahlin') Higgins J, as his Honour then was, sitting in the Supreme Court of the Australian Capital Territory, found that the respondent had failed to accord tenderers procedural fairness in respect of the grant of a lease of certain land within the Territory. Tenders had been submitted by a number of tenderers but it was not apparent whether the bids that were submitted were inclusive or exclusive of goods and services tax ('GST'). After the closing date for tenders, the respondent asked the tenderers to clarify the GST aspects of their respective bids. The successful tenderer, Landco Pty Ltd, had offered $5,700,000. Following the request for clarification in relation to the GST position, Landco Pty Ltd advised that its price 'exclusive of GST' was $6,080,000. Plainly this bid involved an increase in the tender price of $380,000 independently of any GST. In the circumstances, Higgins J found that acceptance of Landco Pty Ltd's revised tender rendered the 'assessment process lacking in procedural fairness' (at [182]). 106 The present case is not such a case. In this case the only evidence of the submission of a different application for funding of up to $600 million, after the closing date for applications, related to Telstra's own application. It will be recalled that Telstra substituted a different proposal for the provision of infrastructure, following its decision to proceed with 'OF installation to Marble Bar' at its own expense for operational reasons. 107 Apart from other considerations, the Court in Gungahlin found that the obligation to accord procedural fairness to tenderers arose by virtue of an implied agreement with the respondent pursuant to the Conditions of Tender independently of the respondent's public law obligations to like effect. Given paragraph 6.1 of the guidelines, no such finding could be made in this case. 108 Telstra submits that 'the policies of the Commonwealth' in respect of the proposed grant must be found within the guidelines. It will be recalled that Part 3 of the guidelines stated that the 'Australian Government's objective' was to improve access to broadband services in regional Australia to the maximum extent possible. It would seem to me that the importance of the guidelines cannot be denied in discerning the relevant policies. However, regard must also be had to the relevant Ministerial Media Releases, notably the joint Media Release of the Minister and the Deputy Prime Minister and Minister for Trade of 21 September 2006 referred to at [1] above. That Media Release revealed that the guidelines had been 'finalised after an Expressions of Interest process earlier this year'. 109 The relevant ' BROADBAND CONNECT REQUEST FOR EXPRESSION OF INTEREST ' of June 2006 included the following: ' A. OVERVIEW: THE BROADBAND CONNECT OPPORTUNITY Since 1997 the Australian Government has demonstrated an ongoing commitment to improving the quality of communications services in regional areas, particularly where the competitive market has not proved fully effective in bringing the benefits of the digital revolution to regional communities. ... ... The Australian Government remains committed to continuing to provide targeted funding to support equitable access to high quality, sustainable broadband services across regional and rural Australia. It is becoming increasingly apparent that next generation broadband, characterised by multi-megabit capacity able to support advanced multimedia applications and improved delivery of government services, is becoming essential to Australia's economic and social prosperity. While such services are increasingly available in the major metropolitan areas, there is concern that the purely commercial roll-out of these services may not occur in regional and rural areas in a timely way. .... The Australian Government intends to test the feasibility of using a substantial portion of the Broadband Connect funding to facilitate a small number of major infrastructure projects that would also leverage significant commercial investment in order to drive a major advancement in the capacity and reach of Australia's regional broadband networks. ... ... there are a significant number of areas (and premises) that do not have access to broadband infrastructure that allows for the provision of services comparable in price and quality to metropolitan services ('metro-comparable') in a sustainable way (that is, without the need for ongoing Australian Government subsidies). These areas are considered to be under-served ... ... It is currently anticipated that up to $500 million could be available for an alternative Broadband Connect approach whereby financial assistance is provided through a competitive grants process to large scale broadband infrastructure projects primarily aimed at addressing currently under-served premises and areas. ... Under this approach Australian Government funding support would not be available for investments that were otherwise commercially viable. Funding support would be targeted at supporting the provision of infrastructure to service under-served areas that otherwise would not get timely access to metro-comparable services through commercial investment alone. ... E. GOVERNMENT OBJECTIVES The Australian Government's primary objective for any future competitive grants program would be to achieve sustainable equitable access to broadband in regional areas by supporting the extension of metro-comparable broadband services into currently under-served areas ... on a basis that would provide access to such services without the need for ongoing Australian Government subsidies. ...'


case_text: Constitutional writ relief under s 75(v) of the Constitution is discretionary. (See Re Refugee Review Tribunal; ex parte AALA [2000] HCA 57 ; (2000) 204 CLR 82 ('AALA') at [5], [18]-[62], [145]-[150], [172] and [217]; see also Lam at [25] per Gleeson CJ.) 96 In AALA Gaudron and Gummow JJ said at [55]: '55 No doubt the discretion with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution . The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission . Her Honour said: "Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (Footnote omitted.)' (footnotes omitted) 102 The content of the requirement for procedural fairness may fluctuate during the course of particular administrative decision-making (per Gaudron and Gummow JJ in AALA at [62]; see also per McHugh and Gummow JJ in Lam at [48]).


case_text: A company, of course, is an abstraction. It has no mind of its own, and its state of mind must consequently be found in the person or persons who is or are really the directing mind and will of the company, 'the very ego and centre of the personality of the corporation' (see per Hunt J, as his Honour then was, in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 1 NSWLR 1 at 5). 120 It is clear that Mr Smith's standing in the Telstra hierarchy was well down the ladder. No evidence was called as to the information available to Telstra, within the meaning of Order 15A rule 6(b), from Mr Smith's superiors, Messrs Goldsworthy and Booth, from the head of the Project Team within Telstra in relation to the Infrastructure Programme, Mr Don Pinel, or from the senior executive within Telstra whose judgment on any application for funding, to be submitted by Telstra, was critical, namely its Chief Executive Officer, Mr Sol Trujillo. What is more, no evidence was tendered as to the discussions, if any, at board level concerning the information available to Telstra and any consideration by the board of the question as to whether or not to commence a proceeding against the Minister in the Court. 121 In my opinion, there is insufficient evidence to enable the Court to conclude that after making all reasonable enquiries, Telstra does not have sufficient information to enable a decision to be made whether to commence a proceeding in the Court against the Minister to obtain the foreshadowed relief.


case_text: The term "unconscionable" as used in s 51AA of the TP Act bears a particular legal meaning. It is the meaning conferred by "the unwritten law, from time to time, of the States and Territories", that is, the common law of Australia: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71. The concept of unconscionability, so understood, was explained by Gummow & Hayne JJ in Berbatis Holdings by reference to earlier authority. Their Honours said (at 76 - 77) that: "In Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 47 at 461 to 463, Mason J referred to passages in the judgments of Fullagar J and Kitto J in Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405, 415. Mason J said (at 462): 'It is made plain enough, especially by Fullagar J, that the situations mentioned are no more than particular exemplifications of an underlying general principle which may be invoked whenever one party by reason of some condition [or] circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created. I qualify the word 'disadvantage' by the adjective 'special' in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interest, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.' His Honour went on to emphasise at (462 - 463) the need for the plaintiff seeking relief to establish the taking of unconscientious advantage of the plaintiff's disabling condition or circumstance. It will be apparent that the special disadvantage at which Mason J spoke in this passage was one seriously affecting the ability of the innocent party to make a judgment as to that party's own best interests." Disadvantage of the kind referred to by Fullagar and Mason JJ can take many forms. Fullagar J cited by way of example "poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary": Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 405.


case_title: Evans v Balog [1976] 1 NSWLR 36

case_text: In some cases it may be appropriate to award damages on the basis contended for by the applicant. This will be so in a relatively narrow range of cases where a tenant has so damaged or modified premises that they are unlettable at the conclusion on the lease: see Joyner v Weeks [1891] 2 QB 31. Normally, however, reinstatement costs will not be awarded unless there exists some special interest in reinstatement arising from a radical change to the usage to which the property can be put following renovations by the tenant: see Evans v Balog [1976] 1 NSWLR 36.


case_text: Section 51AC of the TP Act proscribes unconscionable conduct in trade or commerce on the part of a corporation. In this context the word "unconscionable", bears a wider meaning than that recognised by the common law of Australia. In Hurley v McDonalds Australia Ltd [1999] FCA 1728 Heerey, Drummond and Emmett JJ said that: " For conduct to be regarded as unconscionable, serious misconduct or something clearly unfair or unreasonable, must be demonstrated Cameron v Qantas Airways Ltd (1994) 55 FCR 147 at 179. Whatever 'unconscionable' means in s 51AC , the term carries the meaning given by the shorter Oxford English Dictionary, namely, action showing no regard for conscience, or that are irreconcilable with what is right or reasonable Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 262. The various synonyms used in relation to the term 'unconscionable' import a pejorative moral judgment Qantas Airways Ltd v Cameron (1996) 66 FCR 246 at 283-4 and 298 ... Before s 51AC will be applicable, there must be some circumstance other than the mere terms of the contract itself that would render reliance on the terms of the contract 'unfair' or 'unreasonable' or 'immoral' or 'wrong'." 74 In the present case, it may be assumed in the applicant's favour that the respondent was aware of the applicant's mistaken belief that the foyer would need to be reinstated at the end of the lease. There is, however, no evidence that this knowledge in any way motivated the decision to proceed with the renovation of the foyer in July and August 1997. As will emerge later in these reasons, it is my view that the principal imperative which informed Tabcorp's conduct at this time was its desire to have all renovation works concluded by 31 August 1997 when it was due to move to 5 Bowen Crescent. 75 Moreover, Tabcorp cannot be said to have acted unconscionably in either of the senses used in ss 51AA and 51AC of the TP Act . The applicant laboured under no special disadvantage in its relationship with Tabcorp. It had been engaged in the construction and letting of commercial premises for over 30 years. It had access to advice from experienced solicitors. Those solicitors negotiated with solicitors for Tabcorp in order to settle agreed terms for the lease. This process continued over many weeks and was ultimately successful. The applicant continued to have the benefit of its solicitors' advice after the lease had been executed and Tabcorp's tenancy had commenced. There is nothing in Tabcorp's conduct at any stage during this process that attracts any moral opprobrium. 76 Even if it be assumed that the applicant had a cause of action based on ss 51AA or 51AC of the TP Act , Tabcorp contends that such a cause of action is statute barred. I agree. Section 82(2) of the TP Act requires that any proceeding be commenced within six years of the cause of action accruing. What I have already said in relation to the applicant's claim in waste being statute barred applies also to its claims under ss 51AA and 51AC . 77 The applicant's case, insofar as it alleges a breach of the lease, is straight forward. It starts with the uncontroversial proposition that the work undertaken by Tabcorp in July and August 1997 whereby the foyer was stripped back and renovated constituted a substantial alteration to the building. It says that it never gave written consent for the work to be undertaken and that, as a result, a breach of Clause 2.13 of the lease occurred. It seeks damages in the sum of $1,350,000 which is the estimated cost, in 2007 dollars, of restoring the foyer to its former condition.


case_title: James v Hutton [1949] 2 All ER 243

case_text: The present case closely resembles that of James v Hutton [1949] 2 All ER 243, in which the Court of Appeal refused to award more than nominal damages to the plaintiff lessor in circumstances where the outgoing sub-tenant had "modernised" the façade of the demised premises. In that case the assignee of a lease was granted a licence by the landlord to construct a new shop front to business premises. The licence contained a covenant that the assignee would, if so required, reinstate the premises in their original condition. The landlord gave the assignee notice to reinstate the premises but the assignee failed to do so. At first instance the landlord was awarded damages calculated by reference to estimates of the probable costs of restoration work. The assignee was successful on appeal. The Court of Appeal applied the general rule as to damages for breach of contract, namely that the landlord could only obtain compensation for damage actually suffered. Speaking for the Court Lord Goddard CJ said (at 246): "We see no ground here for assuming that the landlord in the present case has suffered any damage at all. She has got back a shop ...provided with a modern and convenient front, and there was no suggestion that the work had not been carried out properly. We do not for one moment suggest that it might not be possible for a landlord, in circumstances such as these to give evidence that she or her superior landlords at the end of the term desire to carry on or to let the premises for the purpose of carrying on a business for which the altered shop front would be inappropriate and the old one suitable. In that case she might well say that it is of value to her to have the shop back in its former condition and she would suffer damage if the tenant's or assignees' covenant to restore was not carried out, but if it is a mere matter of getting back a shop which has been altered and there is no suggestion that any damage whatever has been caused to the landlord thereby, it appears to us that she has suffered no damage by reason of the tenant's or assignee's failure to comply with her requirements to reinstate." 102 The expert evidence, which I accept, acknowledges the existence of differing subjective views as to the aesthetic merit of the former foyer and the one which has replaced it. The applicant has erected and leased the building for commercial purposes. It is an investment property. The evidence supports the conclusion that, apart from the loss of lettable space on the ground floor caused by the movement of one wall in order to expand the size of the foyer, the applicant has suffered no diminution in the lettable value of the building by reason of the works undertaken by Tabcorp in the foyer area. This work has not had any adverse effect on the lettable value of the property while it is being leased by Tabcorp. At the end of that lease the building will be lettable to another tenant or tenants. It is likely that, at that time, refurbishment of the foyer will be necessary (as it would be necessary had it been retained in its original condition) in order to take account of architectural developments and the need to "freshen up" the building to make it attractive to potential tenants. 103 At that time there will have been a loss of net lettable area. That loss has been quantified at about $26,000. The cost involved in removing the existing wall and relocating it in its former position so as to restore the lettable area is of approximately the same order. Mr Robinson gave uncontested evidence that the building work necessary to restore the foyer to its original proportions would be $33,820. The applicant is entitled to damages in this amount. Nominal damages are also appropriate having regard to Tabcorp's failure to abide by its obligations under Clause 2.13 of the lease. I would award the applicant $1,000 under this head.


case_title: Joscelyne v Nissen [1970] 2 QB 86

case_text: Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305.


case_title: Joyner v Weeks [1891] 2 QB 31


case_text: The applicant claims that the respondent, by gutting and restoring the foyer in the manner in which it has done, has committed a voluntary waste. Waste is a tort which occurs where a positive act, such as demolition, occurs which is injurious to the reversion, usually by diminishing its value: see Marsden v Edward Heyes Ltd [1927] 2 KB 1. 65 The respondent denies that its actions in altering the foyer constituted waste but, in any event, pleads that any cause of action based on waste is statute barred. 66 The Limitation of Actions Act 1958 (Vic) restricts the bringing of a cause of action in tort more than six years after the right of action accrued: see Judiciary Act 1903 (Cth), s 79 and Limitation of Actions Act 1958 (Vic), s 5(1)(a). The cause of action in question accrued no later than July 1998 when Tabcorp unequivocally stated (above at [47] and [48] that it would not restore the foyer. In my view it accrued in July and August 1997 when the works were undertaken. In either event the six year limitation had expired by the time at which the proceeding was commenced on 30 September 2005.


case_title: Murray v Parker (1854) 19 Beav 305


case_title: Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447


case_title: Thomas Bates and Son Limited v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3 ; [1981] 1 WLR 505

case_text: Courts have long recognised that there exists an "inherent probability that a written instrument truly represents the parties' intention because it is a document signed by the parties": see Thomas Bates and Son Limited v Wyndham's (Lingerie) Limited [1980] EWCA Civ 3 ; [1981] 1 WLR 505 at 521. Accordingly "convincing proof" is needed to support an order for rectification of a document which records a commercial agreement: see Pukallus v Cameron [1982] HCA 63 ; (1982) 180 CLR 447 at 452; Joscelyne v Nissen [1970] 2 QB 86 at 98. The classes of documents which may be rectified include leases: see Murray v Parker (1854) 19 Beav 305. 63 Even if it be accepted that the applicant, acting through Mrs Bergamin, was labouring under a mistake as to the content of the lease when she signed it, there is no evidence that, at that time, Mr Gullquist, or anyone else associated with Tabcorp, was aware of the mistake or acted in an unconscionable manner in order to take advantage of it. What is complained of is Mr Gullquist's alleged awareness, in March 1997, that the applicant asserted that the lease imposed a general "make good" obligation on Tabcorp and failed to draw attention to the falsity of the assertion. As already noted, this failure, on the part of Mr Gullquist, is susceptible of an innocent explanation. Moreover the event post-dated by some three months the execution of the lease. Rectification for unilateral mistake requires knowledge of that mistake by the other party prior to execution of the relevant document and the deliberate failure of the other party to disabuse the party labouring under the mistake in circumstances which may be characterised as unconscionable: Thomas Bates & Son Ltd v Wyndham's (Lingerie) Ltd [1980] EWCA Civ 3 ; [1981] 1 All E R 1077 at 1085-6. In the present case Tabcorp was not aware, in December 1996, that Mrs Bergamin thought that the lease contained a general 'make good' clause and it neither, through action or inaction, took unconscionable advantage of Mrs Bergamin's alleged mistake. This is a matter to which I will return.


case_text: I do not accept that contention of Tabcorp that the applicant waived strict compliance with the written consent requirement. It did not do so on 11 July 1997 when Tabcorp was told that it had no objection, in principle, to the removal of the existing foyer surfaces and it did not do so on 14 July 1997 by confirming that works could continue. I have already dealt with Tabcorp's submissions relating to the "in principle" approval: see above at [79]. I would only add in the present context that the 11 July 1997 letter spoke of "in princip[le] approval" of the removal of the existing surfaces. It said nothing about approval for subsequent refurbishment. On 14 July 1997 the Bergamins reluctantly accepted the inevitability that refurbishment work would have to take place. They could hardly have done otherwise given what had been done to the foyer. They made it plain that their prior written consent to the necessary works was needed and that, before that consent would be forthcoming, they wished to see the detailed plans (including the finishes board). This was not conditional approval; it was a reiteration of what the Bergamins understood, correctly, to be Tabcorp's obligation under Clause 2.13 of the lease. In no way did the applicant encourage Tabcorp to act on a false assumption that the applicant did not insist on Tabcorp complying with its obligations under clause 2.13. The applicant was not, therefore, estopped from insisting on Tabcorp so complying: Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 ; (1998) 164 CLR 387. 86 The applicant claims that Tabcorp, by its conduct, contravened ss 52 and 53 (g) of the TP Act . Section 52(1) of the TP Act provides that a "corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Section 53(g) provides that a "corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services, make any false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy." 87 The applicant relies on the following conduct, on the part of Tabcorp, to support its claims under ss 52 and 52 (g) of the TP Act : • The representation, by Tabcorp, made on 11 July 1997, that it would replace the existing glass and stone partition, timber panelling and stone floor tiles with materials which reflected the high quality of the building; • The further representation, also allegedly made on 11 July 1997, that alterations to the foyer would not be undertaken without the applicant's prior consent; • Tabcorp's representation, on 14 July 1997, that the construction of a new foyer would not be undertaken without the applicant's prior consent; • The representation, given on the same day, that Tabcorp would supply the applicant with final drawings, a schedule of finishes and a sample board in order to enable the applicant to consider whether or not to approve the proposed works; • The representation, also allegedly made on 14 July 1997, by Tabcorp that the new stone flooring would be equal to or better in quality than the original granite flooring; • Tabcorp's representation also allegedly made at the meeting on 14 July 1997, that the new foyer would be of an exemplary standard, such that no rectification or improvement of the foyer would be needed at the end of the lease. The applicant contends that it relied on the representations, made on 11 and 14 July 1997, and that, as a result it did not seek to prevent demolition of the existing foyer or the construction of a new foyer and did not take steps to ensure that the standard of the finishes was as represented. It is alleged that the representations that the proposed fittings and finishes would be of a high standard was a matter of opinion for which Tabcorp had no reasonable basis. It is further alleged that the representations were false and misleading in that: • Tabcorp did not obtain the applicant's prior consent before making the alteration; • The finishes to the new foyer were not such as to reflect the high quality of the premises; • Tabcorp did not supply the applicant with final drawings, a schedule of finishes and a sample board before demolishing the foyer and commencing refurbishment; and • Tabcorp did not intend or have the capacity, at relevant times, to obtain the applicant's approval for commencing the works. The applicant pleads that, by reason of these contraventions of the TP Act , the applicant has suffered loss and damage.


case_text: By s 82(2) of the TP Act , any action brought under ss 52 or 53 (g) must be commenced within six years after the day on which the cause of action accrued. An action for loss or damage, commenced pursuant to s 82 of the TP Act , for conduct undertaken in contravention of ss 52 and 53 (g) of the TP Act requires that actual loss or damage has occurred. Anticipated loss or damage, at some time in the future, will not suffice: see Wardley Australia Ltd v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525, 527. No doubt, it is for this reason, that the applicant claims that it "has" suffered loss and damage. Any such loss and damage occurred at the time that the demolition and renovations occurred in July and August 1997. Any cause of action accrued at that time. As a result, the alleged causes of action are statute barred. 90 As already noted the applicant seeks damages for Tabcorp's breaches of Clause 2.13 of the lease. The quantum of damages sought is $1,380,000. This figure is made up of the estimated cost of reinstatement of the foyer to its former condition ($580,000) and loss of rental income during the four month period in which such works are undertaken ($800,000). 91 It is common ground that reinstatement of the foyer will not occur prior to the conclusion of Tabcorp's tenancy. This will not occur, at the earliest, until 2012. If Tabcorp exercises its option to extend the lease by a further five years, it will not occur until 2017. The parties make competing submissions as to the appropriate measure of damages. The applicant seeks the costs of reinstatement of the foyer. Tabcorp, on the other hand, submits that damages should be measured by reference to the diminution, if any, in value of the building occasioned by the works undertaken in the foyer.


case_text: Although, because of the construction that I have adopted of s 853(2) of the WR Act, it is not necessary for me finally to determine whether the judgment of the District Court pronounced on 15 October 2007 is interlocutory, I strongly incline in favour of the view that it is interlocutory. In Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] - [5] McHugh ACJ, Gummow and Heydon JJ said: ...the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights...(emphasis in original) 28 A similar view of the distinction between a final order and an interlocutory order had been taken by McHugh, Kirby and Callinan JJ in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225. In that case their Honours characterised an order of a judge of the High Court dismissing an application for the removal of a cause pending in the Family Court into the High Court as an interlocutory order.


case_text: In Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 440 Taylor J, with whom Owen J agreed, said: ...an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. 30 In the same case at 442 Windeyer J observed that "the distinction between final and interlocutory orders has in England caused much difficulty". At 443-444 his Honour said: In most cases the test that seems to be most satisfactory...is...to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation...The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of 'that action' because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded. After citing certain authorities in support of the view which he adopted, Windeyer J at 444 said: These cases are all illustrative of the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or an existing dispute between parties. 31 The action initiated by the filing of the Statement of Claim was not disposed of by the making of an order requiring Citigroup to pay Mr Mason an amount by way of annual leave entitlements plus interest. The claim for a penalty to be imposed on Citigroup remained to be determined. For the same reason, the dispute between the parties, which involved both Mr Mason's annual leave entitlements and the issue of whether a penalty should be imposed on Citigroup, was not finally resolved in the making of that order. 32 No authorities touching on the proper construction of s 853(2) of the WR Act have been identified. Neither party submitted that the subsection should not be construed literally. So construed it discloses a legislative intention, in the specific case of the appeals for which s 853(1) provides, to override the general prohibition contained in s 24(1A) of the Federal Court Act on the bringing of appeals from interlocutory judgments without leave to appeal being granted. 33 I conclude that s 853(2) is to be construed literally. As a consequence I conclude that it is not necessary to obtain leave to appeal from an interlocutory judgment of a court of a State or Territory in a matter arising under the WR Act notwithstanding that it is necessary to obtain leave to appeal from an interlocutory judgment of the Court in a comparable matter.


case_text: It may be that the drafter of the notice of appeal overlooked that a judgment as defined by the Federal Court Act and the WR Act is an operative judicial act so that there is no appeal from reasons for judgment alone ( Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374). Nor does an appeal lie from a verdict alone prior to judgment being given ( Musgrove v McDonald [1905] HCA 50 ; (1905) 3 CLR 132 at 142). I conclude that the reference to "the orders made on 15 October 2007" is to be understood as, or including, a reference to the operative order of the District Court made on that day requiring Citigroup to pay Mr Mason the amount found to be owing to him in respect of annual leave entitlements and interest.


case_title: Musgrove v McDonald [1905] HCA 50 ; (1905) 3 CLR 132


case_text: Although, because of the construction that I have adopted of s 853(2) of the WR Act, it is not necessary for me finally to determine whether the judgment of the District Court pronounced on 15 October 2007 is interlocutory, I strongly incline in favour of the view that it is interlocutory. In Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at [4] - [5] McHugh ACJ, Gummow and Heydon JJ said: ...the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order. The order of Gleeson CJ refusing to grant leave to issue process was an interlocutory order. It did not finally determine Ms Luck's rights against the various defendants, if she has any such rights...(emphasis in original)


case_text: decision under s 9 of the Protection Act has lapsed. The Minister has made a decision under s 10 but Mr Dates has not made that decision the subject of his application. In order to obtain an injunction, Mr Dates must show that there is a serious question to be tried ( Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J) in the sense explained in O'Neill at [65] per Gummow and Hayne JJ and also address the balance of convenience, in the sense of competing inconvenience and injury. The evidence before me and the Minister's reasons relate to the application under s 9 of the Protection Act. In any event, I will consider whether there is a serious question to be tried in respect of the application to this Court concerning the s 9 decision. As to the significance of Alum Mountain as an Aboriginal area for the purposes of s 9 of the Protection Act, the Minister found that the upper slopes and ridge crest outcrops are significant as part of Aboriginal tradition within the meaning of the Protection Act because they are associated with men's business. That finding is not challenged.


case_text: appeal in Williams , Gray J with whom Tamberlin J agreed, expressed the view, arguably in obiter dicta, that such power does exist ( Williams v Minister for the Environment and Heritage [2004] FCAFC 58 ; (2004) 132 LGERA 368 at [29] , [30] and [40]). Justice Ryan, in Carter v Minister for Aboriginal Affairs [2005] FCA 667 ; (2005) 143 FCR 383 at [39] - [41] , expressed the view that, as Wilcox and Lindgren JJ concluded, Johns compels the conclusion that such interlocutory relief against the third party is not available.


case_text: was pointed out in Johns v Australian Securities Commission [1993] HCA 56 ; (1992) 178 CLR 408 by Brennan J at 433 that s 16(1)(d) does not enable the Court to make an order against a party in litigation where no ground for relief under the general law is established against that party. There must, his Honour said, be " legal reference points by which to steer ". The power is in addition to the power to quash or set aside an impugned decision ( Park Oh Ho v Minister for Immigration & Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637 at 644). It does not enable orders to be made against persons who were not in any way involved in the processes or procedures which led to the decision under review and who benefit from the decision, if at all, only indirectly; those persons are, in that sense, strangers to the decision ( Johns at 459 per Gaudron J). Johns was applied by Wilcox J in Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 (' Williams No 1 ') to refuse relief by way of a restraining order against a joined third party under s 16(1)(d) of the ADJR Act, even after a refusal to make a s 9 declaration was declared invalid and set aside. His Honour concluded that such an order was beyond power. On the application for interlocutory relief following the decision of Wilcox J, Lindgren J expressed the view in Williams v Minister for the Environment and Heritage [2003] FCA 627 ; (2003) 199 ALR 352 (' Williams No 2 ') at [31] that there was not an arguable case that Wilcox J had erred in his view that Johns obliged him to refuse the interlocutory injunction. That is, Lindgren J expressed the view at [40] that a party seeking an injunction under s 16(1)(d) of the ADJR Act must establish a "right" to it under general law principles. Specifically, his Honour concluded at [44] that the general law does not recognise an Aboriginal person as having an interest in the specified area in an application under the Protection Act, protectable by injunctive relief. The right given by s 9 is to apply for a ministerial declaration and that does not constitute such an interest. On appeal in Williams , Gray J with whom Tamberlin J agreed, expressed the view, arguably in obiter dicta, that such power does exist ( Williams v Minister for the Environment and Heritage [2004] FCAFC 58 ; (2004) 132 LGERA 368 at [29] , [30] and [40]). Justice Ryan, in Carter v Minister for Aboriginal Affairs [2005] FCA 667 ; (2005) 143 FCR 383 at [39] - [41] , expressed the view that, as Wilcox and Lindgren JJ concluded, Johns compels the conclusion that such interlocutory relief against the third party is not available. In the present case, where the declaration has not been made and the Minister's decision has not been set aside, it is not necessary for me to consider that matter further. However, like Ryan J, I see much force in the reasoning of Wilcox and Lindgren JJ. Johns does not allow for the interlocutory order as sought. The Judiciary Act Section 39B(1A)(c) of the Judiciary Act confers jurisdiction on the court in any matter arising under a law made by the Parliament. This would include the Protection Act. However, the limitation is that the matter must arise under that Act. The Federal Court Act and Rules


case_title: Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40 ; (1985-1986) 162 CLR 24

case_text: powers of the Federal Court under the ADJR Act are set out in s 16 of that Act. Section 16(1) provides that, on an application for an order for review of a decision, the Court may make certain orders. Subsections (a) to (c) relate to the decision itself, in this case a refusal to make a declaration. If that decision were set aside, it does not follow that the Court is empowered to substitute its own decision as to the making of a declaration for that of the Minster; it is not ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 40 per Mason J). Section 16(1)(d) provides that the court may make an order: Directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties. Mr Dates relies upon s 16(1)(d) as the basis for the orders sought against the RTA, if joined. Mr Dates' complaints go to the merits of the decision and the weight accorded by the Minister to evidence that contradicted the evidence he presented. His complaint is that the Minister came to the wrong conclusion but that does not amount to reviewable error. Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor may not be significant and a failure to take it into account could be seen not to have materially affected the decision ( Peko-Wallsend at 40). I am not satisfied that, for example, the unspecified archeological sites, if not taken into account, could have materially affected the Minister's state of satisfaction in the light of the matters referred to in the reasons. The application asserts a denial of procedural fairness in the making of the decision and manifest unreasonableness. This was not elaborated on the hearing of the motion and I am not satisfied that the particularisation of those grounds in the application discloses a serious question of reviewable error. The Minister, in his reasons, explained why he was satisfied as to the upper parts of Alum Mountain but not satisfied as to the lower parts. To repeat, the Protection Act requires a positive state of satisfaction as to areas and objects of particular significance to Aboriginals in accordance with Aboriginal tradition. Even if there were power to make an order against the RTA as sought in the notice of motion to preserve the subject matter of the s 9 application, Mr Dates has not established, at a prima facie level, that the Minister's decision should be the subject of orders under s 16(1) of the ADJR Act.


case_text: 23 of the Federal Court Act 1976 (Cth) ('the Federal Court Act') provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. The section does not itself confer jurisdiction. Where jurisdiction is conferred by an Act that provides an exhaustive code of available remedies or otherwise limits the power of the courts to grant relief, s 23 does not provide a basis for transcending that limitation. ( Thomson Australian Holdings Pty Ltd v the Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150 at 161; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at [27] - [28] ). Section 23 will not generally be read as giving power to grant additional remedies of a kind already specifically provided for in other legislation which is to be seen as a comprehensive statement of the remedies there available. This presents a difficulty to an applicant seeking broader orders than those provided in the ADJR Act: " the stream cannot rise higher than its source " ( Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41 ; (1992) 34 FCR 169 at 177, 179 per Beaumont J, with whom Black CJ agreed).


case_text: was pointed out in Johns v Australian Securities Commission [1993] HCA 56 ; (1992) 178 CLR 408 by Brennan J at 433 that s 16(1)(d) does not enable the Court to make an order against a party in litigation where no ground for relief under the general law is established against that party. There must, his Honour said, be " legal reference points by which to steer ". The power is in addition to the power to quash or set aside an impugned decision ( Park Oh Ho v Minister for Immigration & Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637 at 644). It does not enable orders to be made against persons who were not in any way involved in the processes or procedures which led to the decision under review and who benefit from the decision, if at all, only indirectly; those persons are, in that sense, strangers to the decision ( Johns at 459 per Gaudron J). Johns was applied by Wilcox J in Williams v Minister for the Environment and Heritage (2003) 74 ALD 124 (' Williams No 1 ') to refuse relief by way of a restraining order against a joined third party under s 16(1)(d) of the ADJR Act, even after a refusal to make a s 9 declaration was declared invalid and set aside. His Honour concluded that such an order was beyond power. On the application for interlocutory relief following the decision of Wilcox J, Lindgren J expressed the view in Williams v Minister for the Environment and Heritage [2003] FCA 627 ; (2003) 199 ALR 352 (' Williams No 2 ') at [31] that there was not an arguable case that Wilcox J had erred in his view that Johns obliged him to refuse the interlocutory injunction. That is, Lindgren J expressed the view at [40] that a party seeking an injunction under s 16(1)(d) of the ADJR Act must establish a "right" to it under general law principles. Specifically, his Honour concluded at [44] that the general law does not recognise an Aboriginal person as having an interest in the specified area in an application under the Protection Act, protectable by injunctive relief. The right given by s 9 is to apply for a ministerial declaration and that does not constitute such an interest.


case_text: 23 of the Federal Court Act 1976 (Cth) ('the Federal Court Act') provides that the Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. The section does not itself confer jurisdiction. Where jurisdiction is conferred by an Act that provides an exhaustive code of available remedies or otherwise limits the power of the courts to grant relief, s 23 does not provide a basis for transcending that limitation. ( Thomson Australian Holdings Pty Ltd v the Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150 at 161; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 ; (1998) 195 CLR 1 at [27] - [28] ). Section 23 will not generally be read as giving power to grant additional remedies of a kind already specifically provided for in other legislation which is to be seen as a comprehensive statement of the remedies there available. This presents a difficulty to an applicant seeking broader orders than those provided in the ADJR Act: " the stream cannot rise higher than its source " ( Minister for Immigration, Local Government and Ethnic Affairs v Msilanga [1992] FCA 41 ; (1992) 34 FCR 169 at 177, 179 per Beaumont J, with whom Black CJ agreed). The Court also has inherent power, as a superior court of record and as a court of law and equity, to make an interlocutory order which is necessary to enable it to perform its function as such as court. This includes the power to make an order directed to preserving the subject matter of litigation ( Williams No 2 at [16] per Lindgren J). That power exists independently of the power in s 23 ( Williams No 2 at [18]). Mr Dates contends that an injunction is necessary to preserve the subject matter of the litigation, namely the untouched parts of Alum Mountain asserted to be of Aboriginal cultural significance. The Minister and the RTA point out that such an order extends beyond that envisaged by the relevant statutes. If the Court were to grant such an injunction it would, as the RTA submits, usurp the decision of the Minister and make, in effect, a s 9 "emergency" declaration. Further, as the RTA observes, the Protection Act provides for injunctions that would preserve the subject matter of a declaration but the precondition is the making of a declaration. Thus, the statutory regime does not envisage an injunction pending the making of, or the determination of a challenge to a refusal to make, a declaration under s 9 or s 10. The RTA submits it is neither a proper contradictor, nor a person whose evidence will assist in the determination of whether the Minister's decisions to refuse to make the s 9 and s 10 declarations should be set aside. The RTA submits that it is, relevantly, a stranger to the Minister's decision under review. This is not affected, for the purposes of s 16(1)(d), by the fact that the RTA made submissions or submitted a report to the Minister which he took into account in making his decision. The question is whether Mr Dates is otherwise entitled to injunctive relief against the RTA, whether or not it is joined as a party ( Williams No 2 at [43] per Lindgren J). The right given by s 9 (or s 10) of the Protection Act to any Aboriginal person to apply for a ministerial declaration does not constitute a right to claim injunctive relief against a third party nor does the general law recognise an Aboriginal person as having an interest in the specified area protectable by injunctive relief. The right given to any Aboriginal person by s 9 of the Protection Act does not constitute such an interest. ( Williams No 2 at [44]). Joinder for the purpose of granting an interlocutory injunction to prevent the RTA from proceeding with the works would afford Mr Dates rights greater than those available under the Protection Act, which does not provide for injunctions per se and in the absence of a declaration. Joinder would also afford rights greater than those under the ADJR Act which, if Mr Dates were successful, could at its highest result in remittal to the Minister for redetermination of his decision. The Minister submits that the RTA may be proper but not a necessary party to the substantive proceedings but that it is not a proper or necessary party to the motion if there is no power in the Court to grant the injunctive relief sought in the notice of motion.


case_title: Thomson Australian Holdings Pty Ltd v the Trade Practices Commission [1981] HCA 48 ; (1980-1981) 148 CLR 150


case_title: Williams v Minister for the Environment and Heritage (2003) 74 ALD 124


case_title: Williams v Minister for the Environment and Heritage [2003] FCA 627 ; (2003) 199 ALR 352


case_title: Williams v Minister for the Environment and Heritage [2004] FCAFC 58 ; (2004) 132 LGERA 368


case_text: fact that the appellant had not satisfied the points test in each criterion in a decision which is set aside would be a matter that the Tribunal could take into account, if it had to complete its review, although it would be able to review the question afresh, as Gummow and Hayne JJ pointed out in Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518. Indeed, in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 222 ALR 411 Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ held that a decision of the Refugee Review Tribunal was affected by jurisdictional error where the tribunal had reached a decision to refuse a visa to an applicant and had said that it had given no weight to a confidential letter. The visa applicant was ignorant of the existence of the letter which contained credible, relevant and significant material which was adverse to the visa applicant. Their Honours said: 'It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.' (222 ALR at 417 [19])