case_text: In relation to that privilege against self-incrimination, the High Court, Toohey, Gaudron, McHugh, and Gummow JJ, said in Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1 at p 12: 'The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without "real exception."' And at p 14: 'There is simply no scope for an exception to the privilege, other than by statute.' 23 It was suggested by counsel on behalf of the applicant in the principal proceedings that there had been a waiver of the privilege against self-incrimination by Mr Wallader in answers that had been made by him or on his behalf concerning his assets and transactions involving those assets. In my opinion, none of that material indicates that the privilege against self-incrimination, in respect of answering the obligations imposed by par 7 of Greenwood Js orders, has been waived. 24 I note further that in Reid v Howard , their Honours said at p 14: '...notwithstanding its importance as a fundamental right, there has been criticism in the United Kingdom of the availability of the privilege against self-incrimination in civil proceedings, particularly when availed of to defeat a plaintiff's rights. Thus, in Istel Ltd v Tully [1993] AC 45 at 53, 55, Lord Templeman described the privilege exercisable in civil proceedings as "an archaic and unjustifiable survival from the past" and concluded that "[t]here is no reason why the privilege should be blatantly exploited to deprive ... plaintiffs of their civil rights and remedies if the privilege is not necessary to protect [the defendant]".' 27 In Australian Competition & Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132 , a Full Court of the Federal Court (Emmett, Hely and Jacobson JJ) referred to the general principles in respect of self-incrimination, at pars 12 14: '12 The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia [1983] HCA 10 ; (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. 13 The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: • is not confined to discovery and interrogatories; • is available at common law • is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)) The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty. 14 By requiring an individual respondent, prior to the closure of an applicant´s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty: Reid v Howard (at 6).'


case_outcome: cited

case_text: I note also that, as long ago as 1982, Lord Denning, Master of the Rolls, said in Rank Film Ltd v Video Information Centre [1982] AC 380 at 408 - 409: 'When a defendant is ordered to answer interrogatories or to disclose documents, the court will allow him the benefit of the privilege against self-incrimination when it is invoked for its legitimate purpose, that is, to save him from having his answer or documents used against him in a criminal court. But the court will not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrong-doing, so as to defeat the just claims of the plaintiff in a civil suit.'


case_text: Notwithstanding these observations, it seems to me clear that the privilege against self-incrimination can be invoked both in civil and in criminal proceedings, as well as in claims for a civil penalty. In Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 204, Deane J made the observation at p 208: '...in a case such as the present where the proceedings are not for the recovery of a penalty, there is no general rule precluding the making of an order for discovery or interrogatories, and there will ordinarily be no proper ground for objecting to an order for production of documents or provision of information being made. The party against whom such an order is made is left to object to producing particular documents or providing particular information on the ground that such production or provision may tend to expose him to a penalty (see Mayor of County Borough of Derby v Derbyshire City Council [1891] AC at p 553.)' His Honour also observed at p 211: ' ... If circumstances arose where the only means of protecting the right against self-incrimination and self-penalization were to excuse a party in limine from discovery or interrogatories, such circumstances should, in my view, be seen as exceptional and as justifying a departure from the general rule.' 27 In Australian Competition & Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132 , a Full Court of the Federal Court (Emmett, Hely and Jacobson JJ) referred to the general principles in respect of self-incrimination, at pars 12 14: '12 The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia [1983] HCA 10 ; (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. 13 The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: • is not confined to discovery and interrogatories; • is available at common law • is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)) The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty. 14 By requiring an individual respondent, prior to the closure of an applicant´s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty: Reid v Howard (at 6).'


case_text: In Australian Competition & Consumer Commission v FFE Building Services Ltd (2003) FCAFC 132 , a Full Court of the Federal Court (Emmett, Hely and Jacobson JJ) referred to the general principles in respect of self-incrimination, at pars 12 14: '12 The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v Commonwealth of Australia [1983] HCA 10 ; (1983) 152 CLR 281 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty: Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208; Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328 at 336. 13 The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty: • is not confined to discovery and interrogatories; • is available at common law • is distinct from the privilege against exposure to conviction for a crime (Pyneboard (at 337)) The rationale for the privilege is that an applicant must prove its own case and should not get any assistance from the respondent in proving its case: Trade Practices Commission v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 ; (2002) 192 ALR 561 at 570, at [31]. The privilege can only be abrogated by statute: Reid v Howard [1995] HCA 40 ; (1995) 184 CLR 1. As the privilege is not subject to judge-made exceptions or qualifications, it cannot be abridged or undermined in consequence of a Court accepting undertakings proffered by the applicant designed to avoid or diminish the danger that provision of the information would expose the respondent to a penalty. 14 By requiring an individual respondent, prior to the closure of an applicant´s case, to file statements of evidence proposed to be given by witnesses to be called by that respondent, such a respondent would be exposed to the risk that indirect or derivative evidence, being evidence obtained by using the material disclosed in the statement as a basis of investigation, could be tendered against the respondent. The provisional disclosure of information may set in train a process that may lead to the imposition of a penalty or may lead to the discovery of real evidence in support of the imposition of a penalty: Reid v Howard (at 6).'


case_title: HMP Industries Pty Ltd v Graham, unreported New South Wales Supreme Court 17 July 1996

case_text: Young J in HMP Industries Pty Ltd v Graham , an unreported judgment of 17 July 1996 in the NSW Supreme Court, expressed the view that: ' Section 128 seems to envisage the situation where a person is in the position of objecting to giving particular evidence. The section also is set in the background of a witness giving evidence with the Court having certain discretions as to whether in all the circumstances it should require the witness to answer a possibly incriminating question. This scenario suggests that it is applicable only where the witness is in Court.' 37 Notwithstanding his Honour's view, it seems to me that the section does not prescribe any particular mode of giving of evidence. It is, in my view, capable of applying to affidavit evidence. 38 However there is a requirement of s 128(5)(b) that: 'The evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country.' 39 Given the factual circumstances of this case, and in particular the applicant being incorporated in St Vincent and the Grenadines, there is a real question whether there has been shown to the court the exclusion of the criterion in s 128(5)(b). 40 More importantly, I am not satisfied that the interests of justice presently require the second respondent to give this evidence, which is in the nature really of a compulsory discovery, particularly where that information might be able to be obtained by third party discovery. 41 The present application seeking to invoke s 128(5) is not directed to seeing that the asset preservation order is efficacious. It really is seeking substantive disclosure in the principal proceedings. I can understand the concern of the applicant to find out where the money went, but in my opinion, the procedure under s 128(5) has not been shown to be the appropriate way to obtain the information.


case_text: The application is made pursuant to O 52 r 17 which empowers the Court to order a stay of execution under a judgment under appeal. There are two competing principles on this application. First, there is the principle that a person ought not to be deprived of the fruits of a judgment whilst the losing party appeals against that judgment. There is the further principle where a party who has an arguable right of appeal ought not to have the appeal rendered nugatory by the successful party at trial being allowed to dissipate the fruits of the judgment. That second principle was considered by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 69 ALR 265. The judgment was handed down by Mansfield J on 4 December 2006 and on that occasion at the behest of the applicant, his Honour stayed the order until yesterday. Yesterday the applicant lodged his notice of appeal and made this application. The application could not be heard last night and has been heard during today. The moneys still remain in Minter Ellison's Trust Account. 3 The applicant seeks an order restraining the joint receivers, managers and liquidators from paying out those moneys to themselves pending the hearing of the appeal. 4 It is likely, I think, that the appeal could not be heard before May of next year. 8 At the same time, they produced a draft application and a draft affidavit which they said would be issued on behalf of Mr Sobey to establish his entitlement to the security over the property. That application was never issued nor was the affidavit ever sworn. Instead, after some considerable delay on the part of the applicant, on 23 August 2006 the joint receivers and managers and liquidators of themselves brought an interlocutory application for directions in relation to Mr Sobey's claim. The matter was managed by Mansfield J, who was also the trial Judge. He gave certain directions with which Mr Sobey did not comply. 9 As a result of Mr Sobey's failure to comply with Mansfield J's directions, a hearing date which had been set for 6 November was vacated and a further hearing date was arranged for 24 November. On 24 November, Mr Sobey's counsel sought an adjournment of the proceeding so that he might bring in evidence from a psychologist to the effect that Mr Sobey was not in a position to conduct the proceedings. He relied for his application on an affidavit of Mr Sobey's solicitor sworn on 21 November 2006 to which was annexed a report dated 20 November 2006 of Dr Wright, who is an occupational physician treating Mr Sobey. 10 The report and other medical evidence shows that Mr Sobey underwent surgery in August 2006 and complications developed. One of those complications was a pulmonary embolism and that gave rise to a chest infection which required drainage. Dr Wright was specifically asked whether Mr Sobey could give detailed instructions in relation to the action. He said that Mr Sobey was not medically fit to provide detailed instructions. He passed no opinion on whether or not he could give general instructions in relation to the matter. 11 His report does indicate that Mr Sobey would not be medically fit to undergo cross-examination of half a day. The trial Judge refused the application for the adjournment and proceeded to hear the matter. In refusing the adjournment his Honour had regard to the history and the delay by Mr Sobey in the institution of any proceedings and in relation to Mr Sobey's refusal or neglect in complying with any directions. He was not satisfied that Mr Sobey's solicitors could not address the matters which were under consideration and, therefore, refused the application for an adjournment. 12 He then decided the matter on the evidence which was adduced by the liquidator and determined that there was not sufficient evidence to establish, as Mr Sobey claimed in his solicitor's letter of 13 December 2005, that Mr Sobey had an equitable interest in the property. He, therefore, made the orders to which I have referred and which are now sought to be stayed pending the appeal. 13 Whilst there are a number of grounds of appeal in the notice of appeal, essentially two matters are raised. First, it is said that the trial Judge was wrong to refuse the adjournment. Secondly, it is said that if the trial Judge was right to allow the adjournment, the trial Judge was wrong to conclude that Mr Sobey's claim of an equitable interest failed. 18 In the circumstances, I am not disposed to grant any further stay of the order made by Mansfield J on 4 December 2006 and, for those reasons, the application for a stay is dismissed. There will be an order that the applicant pay the respondent's costs of the application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 22 December 2006 Counsel for the Applicant: Mr Lazarevich Solicitor for the Applicant: Miranda Ball and Co Counsel for the Respondents: Mr Hoffmann QC Solicitor for the Respondents: Minter Ellison Date of Hearing: 15 December 2006 Date of Judgment: 15 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1826.html


case_text: noted by Brennan J, when he was President of the Administrative Appeals Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634 at 639: Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. This passage has, not surprisingly, been repeatedly cited: e.g. Apthorpe v Repatriation Commission (1987) 13 ALD 656 at 665 per Davies, Lockhart and Gummow JJ; Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998); Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 at [22] , [2005] AATA 1264 ; 91 ALD 435 at 439; SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259 at [11] . After citing the passage from the judgment of Brennan J, French J (as he then was) observed that "... decision-makers can be consistently wrong or consistently unjust ... ": Federal Commissioner of Taxation v Swift (1989) 18 ALD 679 at 692.


case_title: Commonwealth v Evans [2004] FCA 654 , 81 ALD 402

case_text: if that difficulty be left to one side, the problem confronting the Appellants is only compounded by the fact that (as framed) the first two purported Grounds of Appeal do not comply with Order 52 r 13(2)(b) of the Federal Court Rules , namely the requirement to state " briefly, but specifically, the grounds relied upon in support of the appeal ". A statement that a Tribunal has " declined to exercise its jurisdiction " or has committed " jurisdictional error " does not satisfy that requirement. In attempting to provide a " useful practical guide ", it has been said that a " notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions " will " almost certainly " fail to comply with the requirements of Order 52 r 13(2)(b): Commonwealth v Evans [2004] FCA 654 at [35] , [2004] FCA 654 ; 81 ALD 402 at 411 per Branson J.


case_title: Re Confidential and Australian Prudential Regulation Authority [2005] AATA 1264 , 91 ALD 435


case_title: Re Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634


case_title: Federal Commissioner of Taxation v Swift (1989) 18 ALD 679


case_text: if the " Particulars " provided are intended to convey a contention that the Tribunal failed to consider a particular claim, namely the claim as to a " fear as a result of my sister's adverse experiences ", that was a claim not advanced before the Tribunal for resolution. That was the conclusion of the Federal Magistrate. No error is discernible in that conclusion. No error is exposed by the Tribunal failing to resolve a submission not advanced before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1. Black CJ, French and Selway JJ there made the following observations: [58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it ... There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated — Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693 ; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (1999) 90 FCR 287 at 293 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant — Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263 ; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it — SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120 ; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. [59] There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. ... [60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 ; (2003) 199 ALR 364 at 368 [17] , Selway J referred to the observation by Kirby J in Dranichniko v, at 405, that '[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances'. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that '[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made' (at [16]). Selway J however went on to observe in SGBB (at [17]): But this does not mean the application is to be treated as an exercise in 19th Century pleading. His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said: The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made. His Honour, in our view, correctly stated the position when he said (at [18]): The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it. This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it. [61] ... We are of the view that the observations by Merkel J in Paramananthan , by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov , extends to reviewing the delegate's decision on the basis of all the materials before it. [62] Whatever the scope of the Tribunal's obligations it is not required to consider criteria for an application never made. ... In MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588 at [14] , Finkelstein J referred to NABE and observed that " (t)here is no precise standard for determining when an issue is 'raised squarely', but it is clear the tribunal is obliged to consider any claim that is apparent on the face of the material before it ". See also: SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 at [30] to [31] and [56] to [57] per Bennett J; SZGBI v Minister for Immigration and Citizenship [2008] FCA 599 ; Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609. That which is not to be permitted is for a claimant to " reformulate his claims on an ex post facto basis ": SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 at [23] , [2008] FCA 1330 ; 171 FCR 134 at 140 per Gilmour J.


case_text: requirements imposed by s 430(1) (and in particular s 430(1)(c)) were considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 , 206 CLR 323. In rejecting a contention that s 430 requires " the Tribunal to make findings on any and every matter of fact objectively material to the decision " being reached, McHugh, Gummow and Hayne JJ concluded: [68] Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make , and then set out, some findings additional to those which it actually made. In Singh , significance was attached to the use of the word "material" in s 430(1)(c). It was said [2000] FCA 845 ; ((2000) 98 FCR 469 at 481 [47] - [48] ) that "material" in the expression "Material questions of fact" must mean "objectively material". Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read "material" as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. [69] It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution . For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. (Emphasis in original) The same construction was given to s 430 by the then Chief Justice: [2001] HCA 30 at [10] , [2001] HCA 30 ; 206 CLR 323 at 331 to 332. Whatever uncertainty may have prevailed prior to Yusuf, notwithstanding the unambiguous terms of s 430, there now remains no uncertainty as to the proper construction of s 430 or the requirements imposed: eg. SZJOC v Minister for Immigration and Citizenship [2008] FCA 1342 at [20] per Graham J; SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [52] per Lander J.


case_title: MZXLB v Minister for Immigration and Citizenship [2007] FCA 1588


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 , 144 FCR 1


case_outcome: followed

case_text: statements set forth by the present First Appellant do not " provide a sensible framework " within which the appeal may proceed. Why it is said that the Tribunal declined to exercise its jurisdiction is left unspecified; as is the " jurisdictional error " said to have been committed. The content of the present Notice of Appeal is no better than a statement that " the Honorable [sic] Judge failed to follow necessary laws applicable to me ", a statement which likewise was held not to comply with Order 52 r 13(2)(b): NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. The repetition of the statements made by the present Appellants and many other appellants before this Court is no better than the " standard form notice of appeal " employed in migration cases which long ago attracted the criticism of Conti J: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946 at [5] ; SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696 at [5] ; SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122 at [6] .


case_text: Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41 ; (1981) 51 FLR 325 at 334 to 335 Deane J, when sitting as a Judge of this Court and when entertaining an appeal from the Administrative Appeals Tribunal, similarly observed: There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law. Paramount among them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice. Particularly where there is competition or correlativity between rights, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law. It is important that those who constitute the Tribunal should, in their search for the correct or preferable decision in the particular case, be entitled to pay regard both to decisions of the Tribunal in other matters and to policies enunciated and developed by those entrusted with the primary administration of the relevant law. On the other hand, while consistency may properly be seen as an ingredient of justice, it does not constitute a hallmark of it. As Smithers J pointed out in Gungor and Minister for Immigration and Ethnic Affairs [Unreported (Administrative Appeals Tribunal, 30 th May 1980)] consistency must ultimately be related to policy and is safely sought by reference to policy only when the policy is appropriate and acceptable. Decision makers may be consistently wrong and consistently unjust. The Tribunal is not bound by either its own previous decisions or by the content of government policy. There have been and will be cases in which the Tribunal concludes that it should refuse to follow a previous decision of the Tribunal or reject or disregard the dictates of a relevant policy of the government. The existence of such cases serves to emphasize the fact that each applicant to the Tribunal is entitled to have his or her application for review decided on its own particular merits. The desire for consistency should not be permitted to submerge the ideal of justice in the individual case. " Consistency " is thus not an end in itself a like result reached upon the basis of factually diverse materials may be the hallmark of injustice and not justice. The task of the administrator is to resolve a case upon the materials presently available and in accordance with law.


case_title: Pepaj v Minister for Immigration and Multicultural Affairs (unreported, FCA, Merkel J, SG 101 of 1998, 25 November 1998)


case_title: SZDLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 696


case_title: SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798


case_title: SZEZE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 122


case_title: SZEZJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 946


case_title: SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259


case_title: SZGBI v Minister for Immigration & Citizenship [2008] FCA 599


case_title: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 , 171 FCR 1

case_text: difficulty confronting the present First Appellant is that no error is discernible in either the conclusion in fact reached by the Tribunal or the Federal Magistrate. The reasons for decision of the Tribunal disclose that it was well aware of the contrary outcome of the sister's application and it went on to explain the basis upon which it reached that contrary result. As pointed out by the Federal Magistrate, the task of the Tribunal was to resolve the case before it and it was not bound by a decision of a differently constituted Tribunal based upon different factual material. See: SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at [18] , [2008] FCAFC 51 ; 171 FCR 1 at 8 per Gray J. There is no " inconsistency " or " inelegance " of the kind envisaged by Brennan J, nor is there any error. A broadly expressed contention that the present Tribunal did not " sufficiently deal " with a claim has been understood as meaning that the factual conclusion reached was a conclusion open to the Tribunal upon the materials presented but that the course whereby that conclusion has been reached has not been exposed. So construed, the contention is that the Tribunal has failed to comply with the obligations imposed by s 430(1) of the Migration Act 1958 (Cth) which provides as follows: Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based.


case_text: of these two difficulties namely the failure to identify any error committed by the Federal Magistrate nor the failure to identify with acceptable precision the " ground of appeal " is considered to be a mere matter of form: SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [15] . Both are considered essential to this Court only exercising such jurisdiction as has been committed to it by the federal legislature. To the extent that meaning can be given to these first two Grounds of Appeal , however, they are in any event without substance. Even if they can be construed as an inelegant way of contending that the Federal Magistrates Court erred in not concluding that the Tribunal had failed to exercise its jurisdiction or committed jurisdictional error, neither contention is sustainable. The first Ground of Appeal also suffers from a further potential difficulty.


case_title: SZJOC v Minister for Immigration and Citizenship [2008] FCA 1342


case_title: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499


case_title: SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 , 171 FCR 134


case_outcome: affirmed

case_text: application was then filed with the Federal Magistrates Court. That Court on 4 December 2008 published its decision and reasons for decision dismissing the application: SZMIP v Minister for Immigration and Citizenship [2008] FMCA 1665. An application by the First Appellant's younger sister for a protection visa had previously been considered by a differently constituted Tribunal and the sister's application was granted. A Notice of Appeal was filed in this Court on 31 December 2008. The purported Grounds of Appeal are there set forth (without alteration) as follows: 1. The RRT declined to exercise its jurisdiction 2. A jurisdictional error committed by the RRT 3. Breached of procedures as required by the Migration Act Particulars of grounds will be filed and served when required by this court. No " Particulars " have been provided.


case_outcome: referred to

case_text: Application has been made by the applicant to restrain Ms Dominque Saunders and Russell Kennedy (a firm) from acting on behalf of the first respondent in these proceedings. The form of order has not been precisely articulated by the applicant, but I will proceed on the basis that an order is sought that the firm Russell Kennedy and Ms Saunders be restrained from acting as solicitors for the first respondent in these proceedings. The background to these proceedings and the role of each of Ms Saunders and Russell Kennedy have been set out in my judgment delivered on 14 March 2007: see Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351. Essentially, Russell Kennedy are the solicitors on the record representing the first respondent, and Ms Saunders is a solicitor in the employ of Russell Kennedy and has been involved in these proceedings. Other relevant circumstances are referred to later in these reasons.


case_title: Black v Taylor [1993] 3 NZLR 403

case_text: The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher & Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94.


case_title: Bowen v Stott [2004] WASC 94

case_text: The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher & Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94. 13 In Holborow v MacDonald Rudder [2002] WASC 265 at [23] , Heenan J said that the power to exercise supervisory jurisdiction over legal practitioners had been invoked in cases where the subject matter of the litigation was likely to involve an evaluation of the conduct of the legal practitioner. In Bowen v Stott [2004] WASC 94 at [53] and [55], Hasluck J said that it may be appropriate to invoke this power in cases where the legal practitioner may feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness.


case_text: In any event, the alleged confidential information is not described, and therefore this Court cannot determine whether there could be any risk or danger that it may be used to the detriment of the applicant in this proceeding. The authorities are clear that the confidential information must be identified to such an extent that the claim of confidentiality can be assessed by the Court: see Spincode Pty Ltd v Look Software Pty Ltd & Ors [2001] VSCA 248 ; (2001) 4 VR 501 at [22] ; Carindale Country Club Estate Pty Ltd v Astill & Ors (1993) 42 FCR 307 at 314; Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 at [65] to [68].


case_text: The Court must be careful not to intervene unless it is absolutely required in the circumstances of the case. Further, the Court should be mindful that sometimes applications for restraining legal practitioners may be misused or quite inappropriately pursued by a party to proceedings. In Freeman v Chicago Musical Instrument Co 689 F2d 715 (1982), the Court observed at 722: We do not mean to infer that motions to disqualify counsel may not be legitimate, for there obviously are situations where they are both legitimate and necessary; nonetheless, such motions should be viewed with extreme caution for they can be misused as techniques of harassment.


case_text: The Court's jurisdiction to restrain a legal practitioner from acting in proceedings is an exceptional one and discretionary. It must be exercised with appropriate caution and due weight must be given to the public interest in a litigant not being deprived of the legal practitioner of its choice without due or good cause: Grimwade v Meagher & Ors [1995] 1 VR 446 at 452; Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404 at [35] and [51]. The cost, inconvenience or impracticality of requiring a legal practitioner to cease to act may provide a reason for refusing to grant relief: Geelong School [2006] FCA 1404 at [51] ; Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561; Black v Taylor [1993] 3 NZLR 403 and Bowen v Stott [2004] WASC 94. 4 Justice Young in Geelong School [2006] FCA 1404 recently set out the relevant legal principles to be applied when considering whether to restrain a legal practitioner from acting for a particular party to litigation, there being three possible grounds for so restraining a legal practitioner: (a) the danger of misuse of confidential information: Geelong School [2006] FCA 1404 at [24] ; (b) breach of a fiduciary duty of loyalty not to act against a client or against a former client in the same matter or a closely related matter: Geelong School [2006] FCA 1404 at [24] ; and (c) the inherent jurisdiction of the court to control the conduct of legal practitioners as officers of the court: Geelong School [2006] FCA 1404 at [24] , [32] and [33]. 5 In relation to both Ms Saunders and Russell Kennedy, the determination of the questions of whether there is a danger of misuse of confidential information and whether there is a breach of any fiduciary duty can be readily dealt with by me. It would appear that the applicant is concerned that Ms Saunders was a member of the Public Interest Law Clearing House ('PILCH') in 2004 when PILCH refused to assist the applicant to bring proceedings against the first respondent, and in the process of considering the applicant's request to PILCH Ms Saunders obtained "confidential documents" from the applicant. 6 The only evidential basis of the applicant's complaint derives from [25] of her affidavit affirmed on 31 October 2006: Mrs D. Saunders was on PILCH in 2004 and PILCH refused to assist me against the [first respondent] and instead collected many confidential documents from me which then were liked [sic] to Mrs Saunders. I have circumstantial evidence of that. 11 I now turn to consider the issue of the Court's inherent jurisdiction to restrain legal practitioners from acting in a particular case as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice, where such a course is required in the interests of justice: Geelong School [2006] FCA 1404 at [24] , [32] and [33]. The crucial question is whether, on the evidence before the Court, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be restrained from acting for its client in the proceedings: Geelong School [2006] FCA 1404 at [35] . 12 I deal first with the position of Ms Saunders. Serious criminal allegations have been made against Ms Saunders by the applicant. They are denied by Ms Saunders. For the purposes of this application I do not regard it as necessary or appropriate to rehearse in these reasons the details or merits of the allegations. I have, however, come to the view that there is a real likelihood that in these proceedings, assuming the matter proceeds to trial, the conduct of Ms Saunders will require evaluation and assessment and she may well feel compelled to justify or defend her conduct.


case_title: Grimwade v Meagher & Ors [1995] 1 VR 446


case_text: In Holborow v MacDonald Rudder [2002] WASC 265 at [23] , Heenan J said that the power to exercise supervisory jurisdiction over legal practitioners had been invoked in cases where the subject matter of the litigation was likely to involve an evaluation of the conduct of the legal practitioner. In Bowen v Stott [2004] WASC 94 at [53] and [55], Hasluck J said that it may be appropriate to invoke this power in cases where the legal practitioner may feel compelled to justify or defend his or her conduct in representing a client, or where the practitioner's credibility is at stake as a potential witness.


case_title: Kallinicos v Hunt [2005] NSWSC 1181 ; (2005) 64 NSWLR 561


case_title: Sent v John Fairfax Publication Pty Ltd [2002] VSC 429


case_title: Spincode Pty Ltd v Look Software Pty Ltd & Ors [2001] VSCA 248 ; (2001) 4 VR 501


case_text: The statutory phrase that must be construed and applied in this case plays a crucial role in various parts of the TPA and, in all likelihood, the legislature intended that it should carry a consistent meaning wherever it is used in the TPA: see Theo Holdings Pty Ltd v Hockey [2000] FCA 665 ; (2000) 99 FCR 232 at 241 [21] . 74 The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.


case_text: In Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28 ; (1998) 194 CLR 355 at 381 [69] - [70] , McHugh, Gummow, Kirby and Hayne JJ said: 'The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.'


case_text: The policy and purposes underpinning the TPA were examined by Lockhart and Gummow JJ in Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503-504: 'As is the case with Pt IV of the [TPA], the evident purpose and policy underlying Pt V , which includes s 52 , recommends a broad construction of its constituent provisions, the legislation being of a remedial character so that it should be construed so as to give the fullest relief which the fair meaning of its language will allow: see the discussion of the authorities by Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44. The precise boundaries of the territory within which s 52 operates remain undetermined: Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594 at 601.' In Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15 at 41, McHugh J said: 'The Trade Practices Act is a fundamental piece of remedial and protectionist legislation. Such legislation should be construed broadly so as "to give the fullest relief which the fair meaning of its language will allow".' Mason CJ expressed similar views concerning the provisions of Part IV of the TPA in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32 at 44.


case_title: Webb Distributors (Aust) Pty Ltd v Victoria [1993] HCA 61 ; (1993) 179 CLR 15


case_title: Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7 ; (1991) 172 CLR 32


case_text: In Zaravinos v Diary Farmers Co-Operative Ltd (1985) 7 FCR 195 at 198, Lockhart J explained the particular statutory purposes of Div 2A somewhat more narrowly: 'The rationale behind Div 2A is that liability for defects in goods should be borne by the manufacturer rather than the retailer because of modern methods of packaging, labelling, distribution and promotion of goods. Division 2A does not apply where there is a contract between the manufacturer and the consumer. It applies where the manufacturer supplies goods to another person, usually a distributor or retailer, who acquires the goods for the purposes of resupply. The Division applies to the supply of goods which are of a kind ordinarily acquired for personal, domestic or household use or consumption that is, consumer goods.' 76 Notwithstanding the more particular statutory purposes which underpin Div 2A, I consider that a uniform approach should be adopted when construing the definitional phrase found in s 74A(2)(a) and in other provisions of the TPA. Moreover, in my opinion, the statutory phrase should be construed broadly, wherever it appears in the TPA, so as to give the fullest relief which the fair meaning of its language will allow. 77 In general terms, the authorities provide relatively clear guidance as to the way in which the phrase 'goods of a kind ordinarily acquired for personal, domestic or household use or consumption' should be construed and applied. Many of the relevant authorities, however, concern the meaning and application of similar but not identical expressions found in sales tax legislation or tariff classification legislation, and care must be exercised in translating what was said in those contexts to the present context.


case_outcome: considered

case_text: The decisions in Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 (' Diethelm '), Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 (' Chubb '), Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 ( 'Clean Investments ') and Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 (' Hygienic Lily ') all involved the construction and application of an expression found in Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), namely 'goods ... of a kind ordinarily used for household purposes ...'. I will not attempt to discuss every relevant aspect of these cases because they were reviewed at length by Lindgren J in Clean Investments at 260-274 [35]-[103]. 82 Secondly, it is preferable to pose the statutory question (ie the question whether the goods in issue in the particular case are goods of a kind ordinarily acquired for personal, domestic or household use or consumption) as a single composite question: see Clean Investments at 273 [91]-[93] per Lindgren J; Diethelm at 472 per Hill J; and Chubb at 559[F] per Burchett J. This can be contrasted with a two-stage inquiry as to, first, the genus of goods in question, and secondly, whether that kind of goods is ordinarily acquired for personal, domestic or household use or consumption. As Lindgren J pointed out in Clean Investments , posing the genus question separately as a threshold one runs the risk of prejudging the answer to the statutory question. His Honour said at 273 [92] [93]: 'In some cases it may be misleading to address separately the question of identification of the "genus" to which the particular goods in question belong, and the question whether that genus meets the description "ordinarily used for household purposes". The problem can be indicated by the question "What kind of goods is the Item speaking of?" Answering the genus question separately as a threshold one will assume, without making explicit, an answer to this question. Goods and purposes can be equally correctly described in different ways, in particular, broadly or narrowly, yet the description selected may dictate the answer to the statutory question. For example, an architect's stool, an office chair and a kitchen stool or chair may be described as "stools" or "chairs" and their purpose as being "to provide seating". Yet it would be wrong to conclude that the architect's stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating.' French J drew attention to the same risk in Diethelm at 465: 'It cannot be enough to say that because some goods fall into a genus wide enough to encompass goods ordinarily used for household purposes, they are therefore "goods of a kind ordinarily used for household purposes". The mere fact that office chairs and domestic chairs both provide "seating", which in some applications is a household purpose, is not sufficient to establish that office chairs are of a kind ordinarily used for household purposes.' To my mind, the risk to which their Honours draw attention is a real one. I agree that it is preferable to pose the statutory question as a single composite question. On my reading, that was the course adopted by French J in Diethelm and, I think, by both Hill J and Tamberlin J in Chubb. 83 Thirdly, depending on the precise statutory question and the circumstances of the particular case, it will be relevant to inquire as to the essential character of the goods in question. In Diethelm , French J thought that the answer to the statutory inquiry depended critically on the essential character of the goods. Adopting what had been said by Gummow J in Hygienic Lily at 399, Hill J said that the question whether goods are of a particular kind was to be determined objectively, by reference to the nature, quality and adaptation of the goods in the class or genus in question. However, Hill J also expressed reservations about the essential character test, saying that the inquiry may be useful in some cases but in other cases it may suffer from a lack of precision: at 470. In Chubb , Burchett J doubted the usefulness of the essential character test: at 559. Hill J in Chubb looked beyond the essential character of the goods and took into account evidence that explained the attributes, the intended use and the cost of the goods; Tamberlin J adopted much the same approach as Hill J. In Clean Investments , Lindgren J said that the essential character test lacked sufficient precision to assist in answering the question whether the coin-operated washing machines under consideration in that case constituted goods of a kind ordinarily used for household purposes: at 273 [96]. Lindgren J added that there is a danger that the essential character test may serve simply to give an undeserved legitimacy to first impressions. 87 Fourthly, the question posed by s 74A(2)(a) is ultimately a question of fact and degree. In Chubb at 559, Burchett J described the question which arose under Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) in the following way: 'That is a question of fact into which degree and impression must enter largely, but I do not think its resolution is assisted much by turning back to the essential character of the article. Rather, attention must be focused on the statutory question whether goods of that kind are ordinarily used for household purposes.' In the same case, Hill J said at 572 that the trial judge's finding that certain safes were of a kind ordinarily used for household purposes involved: '... a question of judgment based upon a consideration of the description and in some cases photos or drawings of the relevant safe. No error is apparent in her Honour's judgment, although it is possible that minds could differ as to the outcome in a particular case.' These assessments are borne out by the actual decisions in Diethelm and Chubb . Both cases ultimately turned on the sufficiency of the evidence to discharge the burden of proof which rested on the applicant for sales tax exemption. 94 In Diethelm , both French J and Hill J emphasised that their approach to the construction and application of the sales tax exemption was heavily influenced by its statutory context. 95 The issue in Diethelm was whether a manufacturer of office furniture was entitled to a special concessionary rate of sales tax on its office chairs on the ground that they fell within the category of 'goods of a kind ordinarily used for household purposes, namely furniture'. The trial judge found that, while all of the relevant chairs could be bought for use in a home, a high proportion were high quality chairs that were designed and bought for office use. French J dismissed the appeal, holding that the essential character of the chairs in issue was correctly identified as office furniture, reflecting the market in which the chairs were manufactured and sold having regard, inter alia, to their quality, cost, design and intended and actual purchasers: at 465. His Honour thought that the appropriateness of this characterisation was not altered by the fact that the chairs were sometimes used for household purposes, and obviously performed physical functions similar to such chairs, as they were not of a kind ordinarily so used. Hill J was less rigid about the characterisation of the chairs. In the case of some of the chairs, Hill J felt that the characterisation in question should be answered negatively to the manufacturer. For instance, he considered that the high back executive office chair is not a chair of the kind ordinarily used for household purposes; rather it is of a kind ordinarily used for office purposes. The proper characterisation of other chairs was more debatable. In the result, Hill J held that the manufacturer, who had the burden of proof, had not established on the evidence that any particular chair was of a kind ordinarily used for household purposes. In his Honour's view, the evidence did not permit a conclusion on the balance of probabilities that any of the types of chairs sold by the manufacturer was of a kind ordinarily used for household purposes: at 473. Consequently, Hill J dismissed the appeal. Whitlam J agreed with the judgment of Hill J. 97 French J said that, in contrast, the expression 'goods for use' introduces more subjective considerations into the characterisation process. In Commissioner of Taxation (Cth) v Hamersley Iron Pty Ltd (1981) 59 FLR 415, the Full Court of the Victorian Supreme Court noted that the expression 'for use in' is purposive, and makes relevant facts such as the operations which the machines in question were intended to perform, built to order to perform, and did perform: at 426 per Lush J (Kaye and Brooking JJ agreeing). In Deputy Commissioner of Taxation v Stewart [1984] HCA 11 ; (1984) 154 CLR 385, the High Court was concerned with the expression 'goods for use ... and not for sale, by ... a public benevolent institution'. Gibbs CJ (Dawson J agreeing) said that the words 'for use' indicate the purpose to which the goods are intended to be put, rather than the use for which the goods were designed: at 390. Deane J said at 401 that these words require an objective characterisation of the goods themselves in the light of all the relevant circumstances, including knowledge of the actual use which was subsequently made of the goods. French J in Diethelm summed up these authorities by saying, at 464: 'Where design purposes are referred to in the classification by such phrases as "for use as", the subjective intention of the manufacturer and purchaser and actual uses to which the goods are put may be taken into account in the process of characterisation.' 99 The differences between French J and Hill J in Diethelm may be questions of emphasis and degree. Nonetheless, in the context of the construction and application of the phrase 'goods of a kind ordinarily used for household purposes' in sales tax legislation, it seems that French J was prepared to allow a greater role for evidence concerning the commercial realities of the manufacture and sale of the goods in question, that is to say evidence concerning the quality, cost, design and the purpose of intended and actual purchasers of the goods in question, than Hill J would allow. 100 In Diethelm , Hill J observed that Gummow J adopted a similarly restricted approach to the characterisation of the goods in question in Hygienic Lily. However, the decision in Hygienic Lily reflects the very narrow basis on which the case was argued. The case concerned paper cups of different sizes that were manufactured for various customers and which were marked by the manufacturer with the various trade marks or designs employed by the relevant customers in their particular businesses. The applicant mounted its case by reference to evidence concerning cups ordered by one particular customer, McDonalds Restaurants. The sole argument advanced by the Commissioner of Taxation was that, as the cups in question were manufactured solely or substantially for the purpose of use in McDonalds Restaurants, they were not goods of a kind ordinarily used for household purposes within the meaning of the sales tax exemption: at 399. 104 Counsel for the respondent argued that this statement can be reconciled with the apparently more restrictive view which Hill J explained in Diethelm . Counsel pointed out that in Chubb, Hill J maintained the same two stage analysis that he adopted in Diethelm . The first stage involves the determination of the genus to which the goods belong, which is to be made in a common sense way and which may involve a consideration of evidence in borderline cases. The second stage requires a determination of whether the relevant kind of goods is ordinarily used for household purposes: see 569[G]-570[A]. Counsel submitted that Hill J's statement in Diethelm concerning the limited role of evidence was directed to the first stage of the inquiry, whereas his Honour's reference in Chubb to a broader range of evidence was directed towards the second stage of the inquiry.


case_text: The decisions in Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 (' Diethelm '), Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 (' Chubb '), Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 ( 'Clean Investments ') and Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 (' Hygienic Lily ') all involved the construction and application of an expression found in Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), namely 'goods ... of a kind ordinarily used for household purposes ...'. I will not attempt to discuss every relevant aspect of these cases because they were reviewed at length by Lindgren J in Clean Investments at 260-274 [35]-[103]. 81 First, the word 'ordinarily' means 'commonly' or 'regularly', not 'principally', 'exclusively' or 'predominately': see Clean Investments at 273 [97] per Lindgren J; Chubb at 560 per Burchett J, and at 57 per Hill J; Hygienic Lily at 399-400 per Gummow J. Counsel for the respondent invited me to depart from these authorities, and to hold that the word 'ordinarily' as used in s 74A(2)(a) means 'predominately'. In view of the authorities to which I was referred, I doubt that I am free to adopt such a construction. In any event, I am not persuaded that the word 'ordinarily' in s 74A(2)(a) means 'predominately' rather than 'commonly' or 'regularly'. On the contrary, I consider that the meaning which best accords with the policy and the purposes of the TPA is that of 'commonly' or 'regularly'. I am conscious that the Full Court of the Victorian Supreme Court in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110 said at 5112 that the concept of 'ordinarily used for' equals 'whose primary but not necessarily exclusive purpose and customary use is'. However, I do not agree that the word 'ordinarily' should be given such a connotation in s 74A(2)(a) or elsewhere in the TPA. 82 Secondly, it is preferable to pose the statutory question (ie the question whether the goods in issue in the particular case are goods of a kind ordinarily acquired for personal, domestic or household use or consumption) as a single composite question: see Clean Investments at 273 [91]-[93] per Lindgren J; Diethelm at 472 per Hill J; and Chubb at 559[F] per Burchett J. This can be contrasted with a two-stage inquiry as to, first, the genus of goods in question, and secondly, whether that kind of goods is ordinarily acquired for personal, domestic or household use or consumption. As Lindgren J pointed out in Clean Investments , posing the genus question separately as a threshold one runs the risk of prejudging the answer to the statutory question. His Honour said at 273 [92] [93]: 'In some cases it may be misleading to address separately the question of identification of the "genus" to which the particular goods in question belong, and the question whether that genus meets the description "ordinarily used for household purposes". The problem can be indicated by the question "What kind of goods is the Item speaking of?" Answering the genus question separately as a threshold one will assume, without making explicit, an answer to this question. Goods and purposes can be equally correctly described in different ways, in particular, broadly or narrowly, yet the description selected may dictate the answer to the statutory question. For example, an architect's stool, an office chair and a kitchen stool or chair may be described as "stools" or "chairs" and their purpose as being "to provide seating". Yet it would be wrong to conclude that the architect's stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating.' French J drew attention to the same risk in Diethelm at 465: 'It cannot be enough to say that because some goods fall into a genus wide enough to encompass goods ordinarily used for household purposes, they are therefore "goods of a kind ordinarily used for household purposes". The mere fact that office chairs and domestic chairs both provide "seating", which in some applications is a household purpose, is not sufficient to establish that office chairs are of a kind ordinarily used for household purposes.' To my mind, the risk to which their Honours draw attention is a real one. I agree that it is preferable to pose the statutory question as a single composite question. On my reading, that was the course adopted by French J in Diethelm and, I think, by both Hill J and Tamberlin J in Chubb. 83 Thirdly, depending on the precise statutory question and the circumstances of the particular case, it will be relevant to inquire as to the essential character of the goods in question. In Diethelm , French J thought that the answer to the statutory inquiry depended critically on the essential character of the goods. Adopting what had been said by Gummow J in Hygienic Lily at 399, Hill J said that the question whether goods are of a particular kind was to be determined objectively, by reference to the nature, quality and adaptation of the goods in the class or genus in question. However, Hill J also expressed reservations about the essential character test, saying that the inquiry may be useful in some cases but in other cases it may suffer from a lack of precision: at 470. In Chubb , Burchett J doubted the usefulness of the essential character test: at 559. Hill J in Chubb looked beyond the essential character of the goods and took into account evidence that explained the attributes, the intended use and the cost of the goods; Tamberlin J adopted much the same approach as Hill J. In Clean Investments , Lindgren J said that the essential character test lacked sufficient precision to assist in answering the question whether the coin-operated washing machines under consideration in that case constituted goods of a kind ordinarily used for household purposes: at 273 [96]. Lindgren J added that there is a danger that the essential character test may serve simply to give an undeserved legitimacy to first impressions. 87 Fourthly, the question posed by s 74A(2)(a) is ultimately a question of fact and degree. In Chubb at 559, Burchett J described the question which arose under Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth) in the following way: 'That is a question of fact into which degree and impression must enter largely, but I do not think its resolution is assisted much by turning back to the essential character of the article. Rather, attention must be focused on the statutory question whether goods of that kind are ordinarily used for household purposes.' In the same case, Hill J said at 572 that the trial judge's finding that certain safes were of a kind ordinarily used for household purposes involved: '... a question of judgment based upon a consideration of the description and in some cases photos or drawings of the relevant safe. No error is apparent in her Honour's judgment, although it is possible that minds could differ as to the outcome in a particular case.' These assessments are borne out by the actual decisions in Diethelm and Chubb . Both cases ultimately turned on the sufficiency of the evidence to discharge the burden of proof which rested on the applicant for sales tax exemption. 103 The Court in Chubb considered whether any and which of the freestanding, wall-mounted or floor-mounted safes manufactured by Chubb fell within the same sales tax exemption. In the course of his judgment, Hill J returned to the question of what evidence is relevant in determining the statutory question. His Honour concluded, at 571: 'It is clear that, in determining whether a particular safe is of a kind ordinarily used for household purposes, it could be relevant to take into account the intended contents of the safe, its security rating, its size or capacity and, related to these matters, its cost. The answer in a particular case may well be one on which minds may differ, for ultimately the determination whether a particular safe or cabinet falls within the Item is a matter of impression. A matter of degree is involved.' 104 Counsel for the respondent argued that this statement can be reconciled with the apparently more restrictive view which Hill J explained in Diethelm . Counsel pointed out that in Chubb, Hill J maintained the same two stage analysis that he adopted in Diethelm . The first stage involves the determination of the genus to which the goods belong, which is to be made in a common sense way and which may involve a consideration of evidence in borderline cases. The second stage requires a determination of whether the relevant kind of goods is ordinarily used for household purposes: see 569[G]-570[A]. Counsel submitted that Hill J's statement in Diethelm concerning the limited role of evidence was directed to the first stage of the inquiry, whereas his Honour's reference in Chubb to a broader range of evidence was directed towards the second stage of the inquiry. 105 I am not persuaded that the two passages can be reconciled in this way. The passage in Chubb is not seeking to distinguish between different steps or stages in the inquiry; rather it is addressing the composite statutory question whether a particular good is of a kind ordinarily used for household purposes. 106 In Chubb , Tamberlin J took broad view of the categories of evidence that might be relevant to the determination of the statutory question, at 576: 'In making a determination it is clearly permissible to take into account matters such as intended contents, security rating, strength, materials, weight, height, breadth and depth, capacity, price and the value in a monetary sense of the items to be protected. None of these matters is determinative but they are matters against which the classification ought to be made. In particular instances of doubt it will be necessary to give greater weight to one or more of these considerations. Because the exemption is concerned with the "kind" of goods it is not appropriate or necessary to limit the evidentiary material to that which relates solely to the particular products of a single manufacturer. It is permissible to consider products of a similar type made by other manufacturers in respect of size, dimensions, cost, capacity and security rating, for example. It will often be helpful to take into account the segment of the safe and security market at which the goods are targeted in advertising and promotional material.' The determination to which Tamberlin J was referring in this passage was, I think, the determination of the question posed by the statutory language, and not merely the determination of the relevant kind or genus of goods to which the particular goods belong. 107 There is an obvious difference between these sales tax cases and s 74A(2)(a) of the TPA. Section 74A(2)(a) refers to 'goods of a kind ordinarily acquired for personal, domestic or household use or consumption' (my emphasis). Even more clearly than the words 'ordinarily used for', this language invites attention to design features and purposes, cost quality and pricing considerations, and the range of uses and applications for the goods which have been targeted in advertising and promotional material. I see no reason why the permissible range of evidence should not extend to what French J called 'the commercial realities of [the] manufacture and sale' of the relevant goods and, as Tamberlin J suggested, similar goods made by other manufacturers. Nor do I see any reason why the use of this evidence is to be confined to the 'genus' question (assuming it is to be addressed separately), rather than being used to assist more broadly in determining the composite statutory question. 108 I therefore accept that a broad range of evidence may be relevant and potentially useful in answering the statutory question. At the same time, I recognise the importance of bearing constantly in mind that the statutory question is whether the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption. Care must be taken to ensure that the detail of the evidence does not blur this question, or distract the Court from the appropriate inquiry. It would, for example, be a mistake to become so focused on the properties, attributes and intended and advertised uses of the particular goods that the Court fails to address the statutory question. This risk would materialise if the kind of goods were to be identified so narrowly that it amounted to little more than a description of the particular goods.


case_text: The decisions in Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 (' Diethelm '), Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 (' Chubb '), Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 ( 'Clean Investments ') and Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 (' Hygienic Lily ') all involved the construction and application of an expression found in Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), namely 'goods ... of a kind ordinarily used for household purposes ...'. I will not attempt to discuss every relevant aspect of these cases because they were reviewed at length by Lindgren J in Clean Investments at 260-274 [35]-[103]. 81 First, the word 'ordinarily' means 'commonly' or 'regularly', not 'principally', 'exclusively' or 'predominately': see Clean Investments at 273 [97] per Lindgren J; Chubb at 560 per Burchett J, and at 57 per Hill J; Hygienic Lily at 399-400 per Gummow J. Counsel for the respondent invited me to depart from these authorities, and to hold that the word 'ordinarily' as used in s 74A(2)(a) means 'predominately'. In view of the authorities to which I was referred, I doubt that I am free to adopt such a construction. In any event, I am not persuaded that the word 'ordinarily' in s 74A(2)(a) means 'predominately' rather than 'commonly' or 'regularly'. On the contrary, I consider that the meaning which best accords with the policy and the purposes of the TPA is that of 'commonly' or 'regularly'. I am conscious that the Full Court of the Victorian Supreme Court in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110 said at 5112 that the concept of 'ordinarily used for' equals 'whose primary but not necessarily exclusive purpose and customary use is'. However, I do not agree that the word 'ordinarily' should be given such a connotation in s 74A(2)(a) or elsewhere in the TPA. 82 Secondly, it is preferable to pose the statutory question (ie the question whether the goods in issue in the particular case are goods of a kind ordinarily acquired for personal, domestic or household use or consumption) as a single composite question: see Clean Investments at 273 [91]-[93] per Lindgren J; Diethelm at 472 per Hill J; and Chubb at 559[F] per Burchett J. This can be contrasted with a two-stage inquiry as to, first, the genus of goods in question, and secondly, whether that kind of goods is ordinarily acquired for personal, domestic or household use or consumption. As Lindgren J pointed out in Clean Investments , posing the genus question separately as a threshold one runs the risk of prejudging the answer to the statutory question. His Honour said at 273 [92] [93]: 'In some cases it may be misleading to address separately the question of identification of the "genus" to which the particular goods in question belong, and the question whether that genus meets the description "ordinarily used for household purposes". The problem can be indicated by the question "What kind of goods is the Item speaking of?" Answering the genus question separately as a threshold one will assume, without making explicit, an answer to this question. Goods and purposes can be equally correctly described in different ways, in particular, broadly or narrowly, yet the description selected may dictate the answer to the statutory question. For example, an architect's stool, an office chair and a kitchen stool or chair may be described as "stools" or "chairs" and their purpose as being "to provide seating". Yet it would be wrong to conclude that the architect's stool or the office chair is of a kind ordinarily used for household purposes for no other reason than that, like the kitchen chair, it is ordinarily used for the purpose of providing seating.' French J drew attention to the same risk in Diethelm at 465: 'It cannot be enough to say that because some goods fall into a genus wide enough to encompass goods ordinarily used for household purposes, they are therefore "goods of a kind ordinarily used for household purposes". The mere fact that office chairs and domestic chairs both provide "seating", which in some applications is a household purpose, is not sufficient to establish that office chairs are of a kind ordinarily used for household purposes.' To my mind, the risk to which their Honours draw attention is a real one. I agree that it is preferable to pose the statutory question as a single composite question. On my reading, that was the course adopted by French J in Diethelm and, I think, by both Hill J and Tamberlin J in Chubb. 83 Thirdly, depending on the precise statutory question and the circumstances of the particular case, it will be relevant to inquire as to the essential character of the goods in question. In Diethelm , French J thought that the answer to the statutory inquiry depended critically on the essential character of the goods. Adopting what had been said by Gummow J in Hygienic Lily at 399, Hill J said that the question whether goods are of a particular kind was to be determined objectively, by reference to the nature, quality and adaptation of the goods in the class or genus in question. However, Hill J also expressed reservations about the essential character test, saying that the inquiry may be useful in some cases but in other cases it may suffer from a lack of precision: at 470. In Chubb , Burchett J doubted the usefulness of the essential character test: at 559. Hill J in Chubb looked beyond the essential character of the goods and took into account evidence that explained the attributes, the intended use and the cost of the goods; Tamberlin J adopted much the same approach as Hill J. In Clean Investments , Lindgren J said that the essential character test lacked sufficient precision to assist in answering the question whether the coin-operated washing machines under consideration in that case constituted goods of a kind ordinarily used for household purposes: at 273 [96]. Lindgren J added that there is a danger that the essential character test may serve simply to give an undeserved legitimacy to first impressions.


case_text: The decisions in Diethelm Manufacturing Pty Ltd v Commissioner of Taxation (1993) 44 FCR 450 (' Diethelm '), Commissioner of Taxation v Chubb Australia Ltd (1995) 56 FCR 557 (' Chubb '), Clean Investments Pty Ltd v Commissioner of Taxation [2001] FCA 80 ; (2001) 105 FCR 248 ( 'Clean Investments ') and Hygienic Lily Ltd v Deputy Commissioner of Taxation (1987) 13 FCR 396 (' Hygienic Lily ') all involved the construction and application of an expression found in Item 1 of the Third Schedule of the Sales Tax (Exemptions and Classifications) Act 1935 (Cth), namely 'goods ... of a kind ordinarily used for household purposes ...'. I will not attempt to discuss every relevant aspect of these cases because they were reviewed at length by Lindgren J in Clean Investments at 260-274 [35]-[103]. 81 First, the word 'ordinarily' means 'commonly' or 'regularly', not 'principally', 'exclusively' or 'predominately': see Clean Investments at 273 [97] per Lindgren J; Chubb at 560 per Burchett J, and at 57 per Hill J; Hygienic Lily at 399-400 per Gummow J. Counsel for the respondent invited me to depart from these authorities, and to hold that the word 'ordinarily' as used in s 74A(2)(a) means 'predominately'. In view of the authorities to which I was referred, I doubt that I am free to adopt such a construction. In any event, I am not persuaded that the word 'ordinarily' in s 74A(2)(a) means 'predominately' rather than 'commonly' or 'regularly'. On the contrary, I consider that the meaning which best accords with the policy and the purposes of the TPA is that of 'commonly' or 'regularly'. I am conscious that the Full Court of the Victorian Supreme Court in ICI Australia Operations Pty Ltd v Deputy Commissioner of Taxation (Vic) (1987) 82 ATC 5110 said at 5112 that the concept of 'ordinarily used for' equals 'whose primary but not necessarily exclusive purpose and customary use is'. However, I do not agree that the word 'ordinarily' should be given such a connotation in s 74A(2)(a) or elsewhere in the TPA. 83 Thirdly, depending on the precise statutory question and the circumstances of the particular case, it will be relevant to inquire as to the essential character of the goods in question. In Diethelm , French J thought that the answer to the statutory inquiry depended critically on the essential character of the goods. Adopting what had been said by Gummow J in Hygienic Lily at 399, Hill J said that the question whether goods are of a particular kind was to be determined objectively, by reference to the nature, quality and adaptation of the goods in the class or genus in question. However, Hill J also expressed reservations about the essential character test, saying that the inquiry may be useful in some cases but in other cases it may suffer from a lack of precision: at 470. In Chubb , Burchett J doubted the usefulness of the essential character test: at 559. Hill J in Chubb looked beyond the essential character of the goods and took into account evidence that explained the attributes, the intended use and the cost of the goods; Tamberlin J adopted much the same approach as Hill J. In Clean Investments , Lindgren J said that the essential character test lacked sufficient precision to assist in answering the question whether the coin-operated washing machines under consideration in that case constituted goods of a kind ordinarily used for household purposes: at 273 [96]. Lindgren J added that there is a danger that the essential character test may serve simply to give an undeserved legitimacy to first impressions. 96 French J drew attention to the statutory context and the general principles that the classification of goods attracting exemptions or beneficial rates of tax should be liberally construed unless the text or context requires a narrower construction, and that words or phrases should be construed according to their popular meaning unless the evidence establishes that they carry a special commercial or trade meaning in their context: at 457 and 464. His Honour also noted that generalisations about the construction of statutory classifications are to be undertaken with caution, and that subtle changes in language can significantly alter the meaning and operation of a particular provision. French J contrasted the construction given by the authorities to the expression 'ordinarily used for household purposes' with the construction given to the expression 'goods for use' in some specified activity or by some specified person or entity. The former expression has attracted an objective test for characterisation of the goods said to fall within it: see Commissioner of Taxation (Cth) v Newbound & Co Pty Ltd (1952) 10 ATD 59; 26 ALJR 386 at 387 per Dixon CJ; Commissioner of Taxation (Cth) v Sherwood Overseas Pty Ltd (1985) 75 FLR 474 at 477; O R Cormack Pty Ltd v Commissioner of Taxation (Cth) (1992) 92 ATC 4121 at 4123; and Hygienic Lily at 399. In the light of these authorities, French J expressed the test as follows, at 460: 'The question whether goods are "ordinarily used for household purposes" does not depend critically upon the use to which they are in fact put but on an assessment of their "essential character". That assessment does not involve fine semantic distinctions but a judgment which pays regard to the commercial realities of their manufacture and sale.' 100 In Diethelm , Hill J observed that Gummow J adopted a similarly restricted approach to the characterisation of the goods in question in Hygienic Lily. However, the decision in Hygienic Lily reflects the very narrow basis on which the case was argued. The case concerned paper cups of different sizes that were manufactured for various customers and which were marked by the manufacturer with the various trade marks or designs employed by the relevant customers in their particular businesses. The applicant mounted its case by reference to evidence concerning cups ordered by one particular customer, McDonalds Restaurants. The sole argument advanced by the Commissioner of Taxation was that, as the cups in question were manufactured solely or substantially for the purpose of use in McDonalds Restaurants, they were not goods of a kind ordinarily used for household purposes within the meaning of the sales tax exemption: at 399.


case_outcome: discussed

case_text: Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd & Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 88 Beyond endorsing a commonsense approach, the cases that have been decided under s 74A(2)(a) or s 52A(5) of the TPA do not take the analysis much further. In Crago , Lehane J considered whether an ostrich egg incubator and hatcher were goods falling within s 74A(2)(a). Lehane J concluded that they were not. In reaching this conclusion, he said that it was appropriate to ask whether the nature of particular goods is such that they are or are not of a kind ordinarily acquired for personal, domestic or household use or consumption, even in the absence of evidence of actual use: see at 40,798. Lehane J also placed weight on evidence that the goods were used in the ostrich egg 'industry' and that ostriches and their eggs were traded at high prices, and on the lack of evidence that the incubators were in fact acquired for personal, domestic or household use. His Honour drew a distinction between products which might be regarded as of a kind acquired for personal, domestic or household use 'as a matter of common sense' (such as a carpet, a washing machine or a television set) and an ostrich egg incubator.


case_text: Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd & Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 90 In Minchillo, the Court of Appeal upheld the trial judge's decision that a prime mover was not 'goods' to which Div 2A of Part V of the TPA applied. Ormiston J, with whose reasons Fullagher and Brooking JJ concurred, stated at 617: 'The argument must be rejected, for it takes no proper account of the use of the words "ordinarily acquired". Although the words "domestic or household" have a similar connotation, "personal" use is clearly intended to cover a wider field, but the primary contrast intended to be drawn is with commercial or business use, whatever other personal activities a vehicle may be used for. In the case of a prime mover it is hard to see that it would, in the ordinary understanding of those words, be "ordinarily acquired for personal ... use." The causes of action under ss 74B and 74D relied upon by the appellants were therefore rightly dismissed by the trial judge.'


case_text: Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd & Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 89 In Jillawarra, Toohey J held that an air seeder purchased by the applicant for use in its farming business fell outside s 74A(2)(a). Toohey J rejected the applicant's contention that goods of a kind acquired for a farmer's personal, domestic and household purposes would encompass everything which is used on or in connexion with his farm: at 45,090.


case_text: Subject to the caveat just mentioned, the sales tax cases contain the most helpful discussion of the principles that should guide the construction of the statutory phrase in s 74A(2)(a). There are some relevant decisions in the trade practices area dealing directly with the construction of the statutory phrase or substantially similar expressions: see Crago v Multiquip Pty Ltd & Dunogan Farm Tech Pty Ltd (1998) ATPR 41-620 (' Crago' ); Minchillo v Ford Motor Company of Australia [1995] 2 VR 594 (' Minchillo') ; Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (' Jillawarra') ; Carpet Call Pty Ltd v Chan (1987) ASC 55-553 (' Carpet Call' ); and Westminster Properties Pty Ltd v Comco Constructions Pty Ltd (1991) 5 WAR 191 (' Westminster') . However, these cases tend to illustrate the application of the statutory phrase, rather than provide any illuminating discussion of the relevant principles of construction. 92 In Carpet Call, Thomas J considered that carpet installed in a nightclub was within the scope of the statutory phrase. It was unnecessary for Thomas J to discuss the point at length as he decided the case on other grounds, but his Honour observed at 57,187: 'In my view "carpet" is a commodity, or goods, ordinarily acquired for domestic consumption, and it does not lose that description by reason of a commercial rating, or some quality which makes it last longer than other carpet normally supplied for use in a domestic setting. In fact the carpet supplied (as to which the warranty is alleged to apply) was of a domestic rating. The point may deserve discussion at greater length, but for the purpose of noting the submissions and expressing a provisional view, it is not necessary to engage in such discussion here.' 93 Two aspects of the sales tax cases merit further discussion because they have influenced my approach to the construction and application of the phrase found in s 74A(2)(a) of the TPA. The first aspect concerns the significance that attaches to the statutory context and small differences in the language of the statutory phrase. The issue is whether the statutory context of s 74A(2)(a), and the slightly different language used in that section, requires an approach to characterisation that differs from that adopted in the sales tax and customs cases. The second and related aspect concerns the proper scope of the evidence that can be taken into account in answering the statutory question posed by s 74A(2)(a).