case_text: A holder of a native title interest in the Land is entitled to be joined to the proceedings (s 84(5) of the Act; Munn v State of Queensland [2002] FCA 486). A claim to native title is ordinarily, of itself, sufficient to justify joinder under s 84(5) of the Act ( Munn at [8]). While the interests relied upon for joinder need not be proprietary or legal or equitable in nature, they must be ' not indirect, remote or lacking substance...the interests must be capable of clear definition ' ( Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at [7]-[8] per Black CJ) ('the Byron test'). The Byron test does not recognise interests of an emotional kind ( Byron at [8] per Black CJ). The nature and content of the right to become a party to proceedings for a determination of native title suggest that the interests asserted must be of such a character that they may be affected in a demonstrable way by the determination ( Byron at [7] per Black CJ). 11 In Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, Branson J ordered the joinder of Mr Kemp, who did not wish himself to advance a claim for native title, to a proceeding for a determination of native title. Mr Kemp's interest as a descendant of the Pirripaayi people, was to avoid the making of a determination by the Court that discounted the traditional connection which he believed to exist between the Pirripaayi people and the land. Her Honour (at [28]) was of the view that this was an interest that satisfied the Byron test and was relevantly affected by the determination (at [27]). Justice Branson contrasted that interest with Mr Kemp's interest in establishing and maintaining the integrity of his own research and dissemination of his knowledge of Pirripaayi language and culture. The latter interests were characterised as "indirect" interests which fell outside the Byron test (at [27]). 12 Accepting that an interest that is not indirect, remote or lacking in substance is a sufficient interest for the purposes of s 84(5): • What is the nature of the interest asserted by Worimi? • Does a person seeking to establish native title as a respondent have an "interest" within the meaning of the Byron test if they are incapable of meeting the requirements of the Act for a claimant application? 13 Worimi submits that he has, in his affidavit, demonstrated an arguable case that he and others in his family may possess native title rights and interests in the Land. The Land Council submits that the substance of the application for joinder is Worimi's belief that he and the female members of his immediate family hold such rights and interests. That belief is not, the Land Council submits, an interest that may be affected by a determination in these proceedings within the meaning of the Byron test. The Land Council submits that Worimi's personal belief is no more than an interest of an emotional kind. 14 The Land Council submits that joinder should not be permitted where the person seeking to be joined cannot establish anything more than a personal belief that he and his family hold native title. 15 It is not in dispute that Worimi's claimed native title rights and interests must satisfy the Byron test. The Land Council submits that standing as a party is limited to persons whose interests: • may be genuinely, demonstrably and not indirectly affected by a determination of native title; • are not remote or so insubstantial that it will be mere speculation as to whether and, if so, how they may be actually affected by the determination; • can be defined with reasonable certainty and is in each case readily ascertainable as a matter of fact and law. 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded.


case_outcome: cited

case_text: In Davis-Hurst v Minister for Land and Water Conservation (NSW) (2003) 198 ALR 315, Branson J ordered the joinder of Mr Kemp, who did not wish himself to advance a claim for native title, to a proceeding for a determination of native title. Mr Kemp's interest as a descendant of the Pirripaayi people, was to avoid the making of a determination by the Court that discounted the traditional connection which he believed to exist between the Pirripaayi people and the land. Her Honour (at [28]) was of the view that this was an interest that satisfied the Byron test and was relevantly affected by the determination (at [27]). Justice Branson contrasted that interest with Mr Kemp's interest in establishing and maintaining the integrity of his own research and dissemination of his knowledge of Pirripaayi language and culture. The latter interests were characterised as "indirect" interests which fell outside the Byron test (at [27]). 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded. 25 Justice Emmett recognised in Munn at [8] that the holder of a native title interest may have sufficient interest to warrant participation in proceedings, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. Justice Branson joined Mr Kemp, who asserted native title, to the Davis-Hurst proceedings as a respondent, notwithstanding that Mr Kemp did not wish himself to advance a claim for a determination of native title.


case_text: To prevent the making of the declaration sought by the Land Council, Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Native title exists under the Act as a community title capable of recognition by the common law. Individual non-proprietary rights can be recognised where they are derived from the community's laws and customs and are dependent on community title ( Mabo at [52] per Brennan J). Laws and customs in which rights or interests find their origins must be laws or customs having a normative content and deriving from a body of norms or normative system, that existed before sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [38] per Gleeson CJ, Gummow and Hayne JJ). If the normative system has not existed throughout that period, if it has not had a continuous existence and vitality, if the laws and customs cease to be acknowledged and observed by that society as a group, the rights and interests will have ceased to exist and cannot be revived or reconstituted ( Yorta Yorta at [47] [50]). It is not necessary to show that every member of a community or group has acknowledged and observed the relevant traditional laws and customs but the Act requires that a native title claimant group establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that group as a whole ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). As discussed in Hillig (No 2) at [60] [62], a sub-group that accepts that it is only part of a larger group of native title holders is not the group that holds the common or group rights within s 61 of the Act. Worimi and his family are such a sub-group.


case_outcome: applied

case_title: Gamogab v Akiba [2007] FCAFC 74

case_text: The matters for consideration under s 84(5) of the Act, as in force, in respect of Worimi's motion are: (1) Does Worimi have an interest within the meaning of s 84(5) of the Act? (2) May that interest be affected by a determination in the proceedings? (3) In any event, should the Court exercise its discretion to join Worimi as a respondent? ( Akiba v Queensland (No 2) [2006] FCA 1173 ; (2006) 154 FCR 513 at [32] not the subject of comment by Gyles and Sundberg JJ on appeal in Gamogab v Akiba [2007] FCAFC 74). 31 The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]). 37 There is no evidence of prejudice to the Land Council if Worimi be joined, other than that occasioned by delay. As discussed in Gamogab at [59], delay is unlikely of itself to constitute a basis to refuse joinder. Justice Gyles, with whom Sunderg J agreed, discussed the nature of the discretion to be exercised for joinder of a party who has reached the threshold as to affectation of interests. In Gamogab , as here, the Court was considering the application of s 84(5) prior to amendment, that being the section under which the primary judge had considered joinder. At [59] Gyles J said that, if the threshold is reached, the Court ' is to assess the prejudice occasioned to the other parties and the Court by the delay in applying to be joined '. Justice Gyles then observed, consistently with the ' in rem ' nature of the proceedings, that '[i] t would be odd in this day and age if delay in applying, in itself, were to radically prejudice (sic) a potential party '. His Honour emphasised at [60] that it is fundamental that an order which directly affects a third person's rights or liabilities should not be made unless the person is joined as a party. 38 However, the history of the proceedings is relevant. The Court has granted numerous adjournments over the objection of the Land Council (then in administration and represented by an administrator, Mr Hillig) to enable Worimi to prepare his case. Worimi initially declined legal representation which he later accepted and filed two successive claimant applications. As recently as 6 February 2007 he indicated, through his then counsel, that he intended to file another claimant application. This has not occurred. Despite the fact that the original application for joinder was filed on 23 August 2005, it has been stood over repeatedly to allow the claimant applications to be dealt with. 39 This non-claimant application, brought then by the Administrator of the Land Council, was filed on 31 December 2004. The delay attributable to Worimi's various applications based on his assertion of native title is of the order of 22 months. Worimi says that, if he is joined, he would make every effort to file any further evidence within 16 weeks. He later accepted the imposition of such a time limit for the filing of any further evidence on which he relies in the non-claimant application as a condition of joinder. Joinder may be permitted, subject to conditions ( Gamogab at [7]) and, in the circumstances, it would be reasonable to impose such a condition. Bearing in mind the time that has already elapsed and the end of the Court term, it is appropriate to direct that the further evidence be filed and served by 18 December 2007, a period of 14 weeks. 40 I am satisfied that the Court should exercise its discretion to join Worimi to the non-claimant application, subject to the condition limiting the time for filing of further evidence. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 10 September 2007 Counsel for Mr Dates: M Austin (Pro bono) Counsel for the Applicant: M Wright Solicitor for the Applicant: Watson Mangioni Lawyers Pty Ltd Solicitor for the First Respondent: Crown Solicitor for the State of NSW Counsel for the Second Respondent: S Phillips Solicitor for the Second Respondent: NSW Native Title Services Ltd Date of Hearing: 29 June 2007, 2 July 2007 Date of Final Submissions: 6 September 2007 Date of Judgment: 11 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1357.html


case_text: Justice Finn recognised in Kokatha People at [18] that '[i] t is difficult to overstate the centrality of the requirement of "authorisation" in the scheme laid down by the Act for the making of a native title application '. His Honour adopted what had been considered in detail by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. Justice Lindgren there observed that '[p] roper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 ' of the Act (at [1171] citing Perry M and Lloyd S, Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439). At [1172], Lindgren J set out two well supported principles: that non-compliance with the authorisation requirement of s 61(1) is fatal to the success of an application and that authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed.


case_text: The Worimi Local Aboriginal Land Council ('the Land Council'), previously represented by an administrator, Mr Hillig, seeks a declaration that no native title exists over land at Port Stephens, being Lot 576 in Deposited Plan 48823 ('the Land'). By notice of motion filed on 23 August 2005, Mr Gary Dates, also known as Worimi, sought to become a party to the proceedings. Worimi has previously filed two claimant applications for a determination that native title exists over the Land. I struck out each application pursuant to s 84C of the Native Title Act 1993 (Cth) ('the Act') for failure to comply with s 61 of the Act ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770). Worimi had previously indicated that he intended to file a further claimant application. That has not occurred and there is no present suggestion of any intention on Worimi's part to do so. By an amended notice of motion filed on 30 March 2007, Worimi seeks to be joined as a respondent to this non-claimant application under s 84(5) of the Act. The application for joinder is opposed by the Land Council. 16 Worimi satisfies that test. As in Davis-Hurst at [27], Worimi is seeking to avoid the making of a determination by the Court that discounts the traditional connection which he believes to exist between the Worimi people and the Land. Worimi's interest is that of a person who claims that native title exists over the Land. That interest is not indirect, remote or lacking in substance. It is not advanced as an interest of an emotional kind. It is clearly directly affected by a declaration that there is no native title. It is not remote or insubstantial. The Land Council submits that it can be no more than a belief. However, Worimi asserts that native title exists, founded on evidence that was not tested. There was no evidence on this application for joinder to contradict Worimi's evidence or to demonstrate that it fails to satisfy the Byron test. The findings in Hillig (No 2) and Worimi do not extend to a determination that native title does not exist or to a rejection of Worimi's factual assertions. Those decisions covered the failure of Worimi to comply with the requirements of the Act in relation to claimant applications. It has not yet been determined whether Worimi's belief is or is not well-founded.


case_text: In Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 a non-claimant sought, by a non-claimant application, positively to assert the existence of native title. Justice Madgwick observed at [11] that the Act is structured so that any positive assertion that native title exists needs to comply with the requirements of ss 61, 61A and 62 and that the drafters of the Act evidently assumed that only claimant groups would assert native title. His Honour observed that there is no apparent policy reason why the information required of a claimant group should not also be required of a non-claimant application ' if such a vehicle might be used to seek to establish the existence of native title ' (at [11]). To allow otherwise would, in his Honour's view, ' tend to compromise the claimant application process envisaged by the Act ' and ' leave other potential parties and the Court with little of the information necessary to consider the justification for making any positive determination that some group or person holds native title '.


case_text: It is not a matter of mere speculation as to how Worimi's claim will be affected: it will be extinguished. Regardless, Worimi relies on his claimed native title right to oppose or qualify the Land Council's claim of no native title ( Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 (' Kokatha ') at [50]). He has defined his claim and whether or not it is sufficient to answer the claim of the Land Council will be able to be determined. 18 The Land Council submits that the scheme of the Act makes it clear that a person who asserts native title must comply with the requirements of ss 61, 61A and 62 of the Act, whether native title is asserted as a claimant in proceedings for a determination of native title or as a respondent in proceedings seeking a declaration that no native title exists in the Land. The Land Council points to the scheme of Pt 3 of the Act which it says requires that, when a non-claimant application is made, a putative native title holder should make a claimant application within the notification period (ss 61, 62, 66 and 84(3)(a)). It submits that any person or group wishing to assert native title must do so as a claimant and meet the tests imposed by the Act. Accordingly, although Worimi did not make an application within the notification period, it submits the appropriate course is not to be joined to the non-claimant application but to file a claimant application. Of course, Worimi did this on two previous occasions and those applications were summarily dismissed. 19 The Land Council relies on the consideration of the potential claim group identified by Worimi in his second claimant application, which it says substantively mirrors the claim group described in his affidavit in support of joinder. It submits that the only available conclusion is that Worimi cannot identify a claim group capable of meeting the requirements of s 61 of the Act.


case_text: As Finn J noted in Kokatha People v State of South Australia [2007] FCA 1057 (' Kokatha People ') at [9], it is well settled that a native title interest is a sufficient interest for the purposes of becoming a party to proceedings under ss 84(3)(a)(iii) and 84(5) of the Act. As persons with competing claims to native title for an area are entitled to be respondents to the competing claims for the same or overlapping area ( Kokatha at [20] per Mansfield J), so is a person who has a claim that competes with a claim that there is no native title. 26 In Kokatha , Mansfield J observed that all persons who claim to be entitled to native title rights should be able to become a party to the claim or claims in which those rights may be determined (at [20]). In that case, a number of parties claimed a native title interest in the land which was inconsistent with the native title rights and interests claimed by the claimants. His Honour rejected a contention that s 84(5) does not permit the joining of parties because they assert native title rights and interests. His Honour's view (at [22]) was that the Court has a discretion to join persons notwithstanding that the interests upon which they rely in seeking to be joined are native title rights and interests which cannot themselves be determined in the proceedings. His Honour gave an example of a competing native title group who claim communal rights and interests which may be affected by the determination of native title over the claim area. If there were a potential dilution of the competing interests or a possibility of limitation or qualification of the native title being claimed, the holder of the competing interest was eligible for joinder. The fact that native title rights are communally held does not disentitle an individual from being joined as a party whose rights may, individually, be affected (at [24]). His Honour recognised that an assertion of the rights enjoyed by individual members of a competing native title claim group may ' lead to a more informed decision ' as to whether a determination of native title rights and interests should be made as expressed in the application before the Court (at [24]). 27 Justice Finn recognised in Kokatha People at [18] that '[i] t is difficult to overstate the centrality of the requirement of "authorisation" in the scheme laid down by the Act for the making of a native title application '. His Honour adopted what had been considered in detail by Lindgren J in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. Justice Lindgren there observed that '[p] roper authorisation is the foundation for the institution and maintenance of a native title claimant application under s 61 ' of the Act (at [1171] citing Perry M and Lloyd S, Australian Native Title Law (Thomson Lawbook Co, 2003) at [3.140] p 439). At [1172], Lindgren J set out two well supported principles: that non-compliance with the authorisation requirement of s 61(1) is fatal to the success of an application and that authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed. 29 I agree with Finn J in Kokatha People at [48] that the legislative intent to require applicants to comply with the requirements of ss 61, 62 and 251B applies to any person or persons advancing a claim for a determination of native title. A person or group that seeks a positive determination of native title is required to make a s 61 determination application under the Act. 30 However, that does not mean that a person is unable to use claimed native title rights and interests defensively to combat a non-claimant application for a declaration that no native title exists. The assertion of such rights and interests may lead to a more informed decision in the non-claimant application. 31 The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]).


case_text: In Risk v National Native Title Tribunal [2000] FCA 1589 , O'Loughlin J considered the correct interpretation of "a native title claim group" in the context of an application for a determination of native title and the principle that native title is communally held ( Mabo v State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at [109] [10] per Deane and Gaudron JJ). A native title claim group is not established or recognised merely because a group of people call themselves a native title claim group ( Risk at [60]). In Risk , as here, the family that Worimi represents is, on his own evidence, only part of the group which, according to traditional laws and customs, could hold native title over the Land. Worimi accepts that the members of that group do not claim native title and concludes that they are unaware of the traditional laws and customs. 35 To prevent the making of the declaration sought by the Land Council, Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Native title exists under the Act as a community title capable of recognition by the common law. Individual non-proprietary rights can be recognised where they are derived from the community's laws and customs and are dependent on community title ( Mabo at [52] per Brennan J). Laws and customs in which rights or interests find their origins must be laws or customs having a normative content and deriving from a body of norms or normative system, that existed before sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [38] per Gleeson CJ, Gummow and Hayne JJ). If the normative system has not existed throughout that period, if it has not had a continuous existence and vitality, if the laws and customs cease to be acknowledged and observed by that society as a group, the rights and interests will have ceased to exist and cannot be revived or reconstituted ( Yorta Yorta at [47] [50]). It is not necessary to show that every member of a community or group has acknowledged and observed the relevant traditional laws and customs but the Act requires that a native title claimant group establish rights and interests possessed under the traditional laws acknowledged and the traditional customs observed by that group as a whole ( De Rose v South Australia (No 2) [2005] FCAFC 110 ; (2005) 145 FCR 290 at [58] ). As discussed in Hillig (No 2) at [60] [62], a sub-group that accepts that it is only part of a larger group of native title holders is not the group that holds the common or group rights within s 61 of the Act. Worimi and his family are such a sub-group.


case_text: Justice Finn considered directly whether the Court has jurisdiction under the Act to make a determination of native title in favour of a person (or group of persons) that has not made a native title determination application under s 61 of the Act and is a respondent to the proceedings. As in Kokatha , the context was a claim to native title by the Kokatha people ('the Kokatha native title claim'). Mr McKenzie initially became a respondent to the Kokatha native title claim pursuant to s 84(3) of the Act. He was also the named applicant in separate proceedings ('the first Kuyani native title claim') that overlapped the Kokatha native title claim. The first Kuyani native title claim was struck out after six amendments which altered substantially the composition of the claim group and lands the subject of the claim. The claim was struck out as Finn J found that there was no arguable basis on which the requirements of ss 61(4), 62(1)(iv) and (v) relating to Mr McKenzie's authorisation to bring the claim, could be satisfied ( McKenzie v South Australia (2005) 214 ALR 214). A second Kuyani native title claim was then brought by Mr McKenzie. Orders were made in the Kokatha native title claim for it to be dealt with in that proceeding to the extent that there was overlap. The second Kuyani native title claim was discontinued but Mr McKenzie remained as a respondent to the Kokatha native title claim ' apparently on the basis that, notwithstanding the discontinuance, he claimed to hold native title in relation to land in the area covered by the proceedings...or else his interests might be affected by a determination in it ' (at [9]). In addition to opposing a determination that the Kokatha people held exclusive native title rights and interests in the claim area, Mr McKenzie sought a determination that the native title in respect of the area was held by the Kokatha people on a shared basis with Kuyani people.


case_title: Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422


case_text: The Court has a discretion under s 84(5) whether or not to join a person whose interests may be affected by a determination in the proceedings. That discretion is not, however, "at large" ( Gamogab at [56]). Where the interest claimed is a positive claim to native title, it is relevant to that discretion that no such determination can be made unless the requirements of ss 61, 62 and 251B are complied with ( Kokatha at [22] [23]; Moses v State of Western Australia [2007] FCAFC 78 at [18] ; Kokatha People at [45]) and the person or group of persons has a s 61 application on foot in the proceedings ( Kokatha at [23]; Kokatha People at [46]).


case_text: A holder of a native title interest in the Land is entitled to be joined to the proceedings (s 84(5) of the Act; Munn v State of Queensland [2002] FCA 486). A claim to native title is ordinarily, of itself, sufficient to justify joinder under s 84(5) of the Act ( Munn at [8]). While the interests relied upon for joinder need not be proprietary or legal or equitable in nature, they must be ' not indirect, remote or lacking substance...the interests must be capable of clear definition ' ( Byron Environment Centre Incorporated v Arakwal People (1997) 78 FCR 1 at [7]-[8] per Black CJ) ('the Byron test'). The Byron test does not recognise interests of an emotional kind ( Byron at [8] per Black CJ). The nature and content of the right to become a party to proceedings for a determination of native title suggest that the interests asserted must be of such a character that they may be affected in a demonstrable way by the determination ( Byron at [7] per Black CJ). 25 Justice Emmett recognised in Munn at [8] that the holder of a native title interest may have sufficient interest to warrant participation in proceedings, notwithstanding that the Court could not make a determination in relation to that interest in the proceeding in question. Justice Branson joined Mr Kemp, who asserted native title, to the Davis-Hurst proceedings as a respondent, notwithstanding that Mr Kemp did not wish himself to advance a claim for a determination of native title.


case_text: In Risk v National Native Title Tribunal [2000] FCA 1589 , O'Loughlin J considered the correct interpretation of "a native title claim group" in the context of an application for a determination of native title and the principle that native title is communally held ( Mabo v State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at [109] [10] per Deane and Gaudron JJ). A native title claim group is not established or recognised merely because a group of people call themselves a native title claim group ( Risk at [60]). In Risk , as here, the family that Worimi represents is, on his own evidence, only part of the group which, according to traditional laws and customs, could hold native title over the Land. Worimi accepts that the members of that group do not claim native title and concludes that they are unaware of the traditional laws and customs.


case_title: Western Australia v Ward [2000] FCA 191 ; (2002) 99 FCR 316

case_text: The Land Council asserts an absence of native title. The members of the Land Council are adult Aboriginal persons who are listed on the Local Aboriginal Land Council membership roll for the area in which the Land is located (s 53 of the Aboriginal Land Rights Act 1983 (NSW) ('the Land Rights Act')). Once a determination of no native title is made, that will be conclusive with respect to the Land. If the non-claimant application for a determination that native title does not exist over the Land succeeds, that will operate as a decision in rem and will, subject to the possibility of variation or revocation under s 13 of the Act, extinguish all and any native title rights and interests ( Western Australia v Ward [2000] FCA 191 ; (2000) 99 FCR 316 at [190] ). 33 During the course of the various proceedings Worimi has, as described in Hillig (No 2) , changed the description of the claim group and the basis of his own participation, from being the representative of the Worimi/Garuahgal women who claim the women's site on the Land to claiming for himself and his immediate family and as guardian of the Land. He has changed the description of the location of the women's site from being wholly on the Land to only partly on the Land. No Worimi woman has given evidence to support the existence of that site. 34 There are a number of factors relevant to the exercise of the Court's discretion pursuant to s 84(5) of the Act: • These proceedings were commenced on 31 December 2004. The procedural history is set out in part in Hillig (No 2) at [39]. • The notice period under s 66 of the Act ended on 8 June 2005. • Worimi first applied to be a respondent to these proceedings on 23 August 2005. • The first directions hearing attended by Worimi was on 10 November 2005. On a number of subsequent occasions, Worimi was granted adjournments to prepare his case, or the proceedings were adjourned because he did not attend. Worimi filed a claimant application on 9 February 2006. The first hearing in connection with his claim, being an application to strike out the claimant application commenced on 13 June 2006. Delay prior to that time was caused in part by Worimi declining legal representation. On 14 June 2006, Worimi notified the court that he was unwell and would not be attending. The proceedings were again adjourned. On 26 June 2006, Ms Jowett appeared pro bono for Worimi. • After the first claimant application was struck out on 22 August 2006, Worimi filed a second claimant application on 15 September 2006. The (then) administrator of the Land Council moved the Court to have the second application struck out. At the hearing, Worimi was legally represented by Ms Jowett and Mr Lenehan, pro bono. That claimant application was struck out on 19 December 2006. • On 6 February 2007, Ms Jowett informed the Court that Worimi intended to file another claimant application. Directions were made for Worimi to file and serve any amended notice of motion for joinder to the proceedings and any affidavit upon which he relied in support of that motion by 6 March 2007. Worimi was unable to comply with the directions. The Court extended the time for him to file the amended motion to 30 March 2007 and the time for him to file any evidence to 24 April 2007. • On 30 March 2007, Worimi filed an amended notice of motion for joinder and a supporting affidavit. • Worimi has had the opportunity over a year and a half to file evidence to support his assertion of native title over the Land and his application for joinder to the non-claimant application. • Worimi originally stated that he brought the application on behalf of Worimi/Garuahgal women and that a women's site existed on the Land. The description by Worimi of the nature and extent of the practices said to have been observed on the Land has changed from being wholly on the Land to being only partially on the Land ( Worimi at [32]). That, in turn, affects and enlarges the extent to which men, including Worimi, are permitted onto the Land to engage in the activities described by Worimi in his evidence ( Hillig (No 2) at [16]-[17]; [21]; [29]). That change coincided with the change in the basis of Worimi's claim. • While Worimi still asserts a women's site on the Land, there is no evidence from any Worimi or Garuahgal woman that that is so. Worimi has previously acknowledged that, to the contrary, Worimi women assert that there is no such women's site. • Worimi originally asserted an association of the Worimi nation, the Garuahgal clan and the descendents of Mary Mahr with the Land ( Hillig (No 2) at [21], [25]; Worimi at [40]). • While Worimi asserts guardianship over the Land as the eldest male of his family, there is no evidence from any other spokesman for any other family supporting the existence of native title. Worimi does not claim that individual or family rights are recognised by traditional law or custom ( Worimi at [43]). • Native title rights are, of their nature, group rights and interests, communally held. Worimi acknowledges that the Worimi community and the women in particular are unaware of such rights or traditional laws and customs associated with the Land and do not observe any such laws and customs in connection with the Land. • The applicant seeking a determination of no native title is the Land Council, which was granted fee simple in the Land. One of its statutory functions is to protect the interests of Aboriginal persons in its area in relation to the acquisition, management, use, control and disposal of the Land (s 52(3)(b) of the Land Rights Act). • The Land Council has attempted to sell the Land, a single lot that represents only a part of the land granted pursuant to the Land Rights Act ( Hillig (No 2) at [5]). In order to sell the Land, not less than 80% of the members of the Land Council present and voting must have determined that the Land is not of cultural significance to Aborigines in the area (s 40D(1)(a) of the Land Rights Act). • Worimi's attempts, via two claimant applications, to establish native title over the Land have been dismissed, on the basis that he cannot establish native title under the Act. He has not sought to appeal those decisions or to file a further claimant application. • The Land Council has urged the hearing of its application since it first came before the Court. It is aware of Worimi's assertions and persists with its application. It has opposed the various adjournments sought and granted to Worimi. The Land Council has a right to have its application heard. • Worimi, through Mr Austin, informs the Court that, if joined, he wants a further 16 weeks in which to consider whether he wishes to adduce additional evidence on the question of native title and to file any such evidence. He is content to accept such a direction as a condition of joinder.


case_text: The Worimi Local Aboriginal Land Council ('the Land Council'), previously represented by an administrator, Mr Hillig, seeks a declaration that no native title exists over land at Port Stephens, being Lot 576 in Deposited Plan 48823 ('the Land'). By notice of motion filed on 23 August 2005, Mr Gary Dates, also known as Worimi, sought to become a party to the proceedings. Worimi has previously filed two claimant applications for a determination that native title exists over the Land. I struck out each application pursuant to s 84C of the Native Title Act 1993 (Cth) ('the Act') for failure to comply with s 61 of the Act ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770). Worimi had previously indicated that he intended to file a further claimant application. That has not occurred and there is no present suggestion of any intention on Worimi's part to do so. By an amended notice of motion filed on 30 March 2007, Worimi seeks to be joined as a respondent to this non-claimant application under s 84(5) of the Act. The application for joinder is opposed by the Land Council.


case_outcome: followed

case_text: That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597.


case_text: To the extent that the " Particulars " raise a separate contention that the Tribunal failed to " give any weight " to the now Appellant's position as a refugee and his " difficulties to obtain relevant documents ", again the contention is rejected. It may be accepted that applicants for refugee status may well face difficulties in both advancing their claims and in securing documents in support of their claims: Premalal v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 82 ; (1993) 41 FCR 117 at 141. 9 Difficulties in obtaining information in support of a refugee claim have been the subject of comment. See: Taylor S, Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions (1994) 13 Univ Tas L Rev 43.


case_text: That may have been the " impression " of the now Appellant at the time. But there was no obligation imposed upon the Tribunal to raise with him whatever reservations may have been experienced at the time as to the explanations being provided by the now Appellant, let alone any obligation to raise whatever reservations may subsequently have emerged when the evidence in its entirety was being considered and the reasons being drafted. As was recognised by Lord Diplock in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369: ... the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. And, after having cited these observations, in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152 at 166 Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ further observed: [48] ... Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. See also: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 at [11] , 103 ALD 595 at 597. 21 An application made by the now Appellant during the course of his oral submissions was for the provision of legal assistance. That application was construed as an application for a referral pursuant to O 80 of the Federal Court Rules . Rule 4(1) and (2) provide as follows: Referral to a legal practitioner (1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. Left to one side is whether or not a referral should or could be made after the commencement of the hearing of the proceeding in which the referral is sought. Even if such a referral could then be made, in the circumstances of the present appeal it is not considered to be " in the interests of the administration of justice " to make such a referral. Although the phrase " the interests of justice " is " wide " ( Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10] per French J), the " nature and complexity of the proceeding " does not warrant the making of any such referral. And it is not considered that either the application for review as made to the Federal Magistrates Court or to this Court on appeal exposes any argument which has any real prospects of success. An assessment as to prospects of success is relevant to the exercise of the " broad discretion " conferred by O 80 r 4: Rivera v Minister for Home Affairs [2008] FCA 1 at [6] [8] per Tamberlin J. Moreover, the now Appellant had the benefit of legal assistance prior to the hearing before the Federal Magistrates Court. Such assistance as may otherwise have been warranted was most appropriately received at the hearing before the Federal Magistrates Court rather than on appeal.


case_outcome: distinguished

case_text: But, if such difficulties are to be given any weight, consideration must be given to at least the nature of the information which it has been said has been difficult to obtain; the ability to obtain such information; and to the steps which have been taken to secure the availability of such information. It must also be recognised that some information may be more readily available to a Commonwealth respondent or entity than to an unrepresented applicant. Thus, for example, in Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13, Wilcox J recognised that the applicants there had limited ability to secure information. His Honour observed (at N14 15): ... There may be occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts. Such a case may arise where the material before the decision-maker indicates cause for concern about a relevant matter but where a person who would be affected by an adverse decision -- and who might normally be expected to put his case to the decision-maker -- had no reasonable opportunity to put the full facts relating to that concern before the decision-maker. An example is furnished by this very case. Mr and Mrs Singh alleged the recent persecution in India -- and particularly in the Punjab -- of members of the Sikh community. In the light of notorious events this was plainly a matter of concern, but it was a matter about which they necessarily had no direct knowledge. Under those circumstances, the matter could be adequately considered only with the benefit of better information than Mr and Mrs Singh might be expected to provide. That information was likely to be obtainable through official channels. Reasonableness required that such information be available to the Panel. The Department recognized that fact in placing before the Panel the information upon the situation in India which it had recently obtained from the Department of Foreign Affairs. 11 In the present appeal, however, the " documents " in issue are documents personal to the now Appellant and information, it would have been thought, available to him to secure and produce. The only explanation provided for those documents not being before the Tribunal is the following account provided in a letter to the Tribunal in October 2007: The RRT Member who interviewed me before found that I had fabricated my claims. I asked for time to get court documents from India. As I had fled from India in fear of persecution, I couldn't find anyone to get me the court documents, to submit to the Tribunal. Most of the time the police authorities falsely framed charges and held me in remand torturing me. When I was taken to courts my case was dismissed. It is very difficult to get any court documents from India as bribery is thriving and people fear to approach the police or the courts to retrieve documents. As I am here I am unable to convince anyone by phone to obtain these court documents in relation to my old case. The Tribunal obviously drew upon this account in its reasons for decision. 12 So construed, the argument is not really an argument as to any denial of natural justice or procedural fairness. Every opportunity was extended to the now Appellant to secure such documents as supported his case and to present the case he sought to advance. No further opportunity was likely to result in the production of more documents. Indeed, it was unlikely that the now Appellant could himself have secured any greater access to documents, let alone an agent or friend on his behalf. In a letter written to the Tribunal in November 2007 he acknowledged that he did not even know the " court " to which he was referring: " I do not understand the difference between a District Court or any other type of court. As far as I understand I know for certain that I was taken to a court in Madras ".


case_title: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , 228 CLR 152


case_text: When remitted, the matter came before the Refugee Review Tribunal differently constituted. A hearing before the reconstituted Tribunal took place in October 2007 and on 13 December 2007 the Tribunal as reconstituted again affirmed the decision not to grant the protection visa. That Tribunal made adverse findings as to the credibility of the now Appellant. It concluded that the now Appellant " did not provide an accurate account of his circumstances to either the former or current Tribunal, because he was fabricating his claims throughout the processing of his protection visa application ". It was " not satisfied as to the applicant's general credibility ". An application for review of that decision of the Tribunal was dismissed by the Federal Magistrates Court: SZCQA v Minister for Immigration [2008] FMCA 1300. 4 The Appellant now appeals to this Court. He appeared unrepresented although he did have the assistance of an interpreter. The Grounds of Appeal (without alteration) are expressed as follows: 1. The Refugee Review Tribunal failed to accord my natural justice: Particulars A. I stated before the Tribunal that some documents I could not provided to the Tribunal as it would be difficult to obtain those documents. But the Tribunal did not give any weight to my situation that as a refugee I could obviously face difficulties to obtain relevant documents those support my entire claim as a refugee. As a result the Tribunal ignore the adverse circumstance that did significant impact to my decision. 2. The Refugee Review Tribunal made a wrong assumption in relation to my fear of persecution in my home country: Particulars A. The Tribunal made a wrong assumption in relation to my fear of persecution in my home country by making the following comment: i) the applicant has fabricated the essential claims. 3. The Refugee Review Tribunal's finding about the inconsistency was wrong and unsupported: Particulars A. The Tribunal's finding about the inconsistency was wrong and unsupported. The Tribunal also did not disclose to me the country information that had the element of adverse information and did not support my claim. These Grounds , it may be noted, are expressed in terms of errors allegedly made by the Refugee Review Tribunal. The jurisdiction of this Court, however, is an appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court. 5 No error is alleged in respect to any aspect of the decision of the Federal Magistrates Court. The appeal should be dismissed for that reason alone.


case_title: SZHBP v Minister for Immigration and Citizenship [2008] FCA 1299 , 103 ALD 595


case_outcome: considered

case_text: An application made by the now Appellant during the course of his oral submissions was for the provision of legal assistance. That application was construed as an application for a referral pursuant to O 80 of the Federal Court Rules . Rule 4(1) and (2) provide as follows: Referral to a legal practitioner (1) The Court or a Judge may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a legal practitioner on the Pro Bono Panel for legal assistance in relation to a proceeding before the Court. (2) For subrule (1), the Court or Judge may take into account: (a) the means of the litigant; and (b) the capacity of the litigant to obtain legal assistance outside the scheme; and (c) the nature and complexity of the proceeding; and (d) any other matter that the Court, or Judge, considers appropriate. Left to one side is whether or not a referral should or could be made after the commencement of the hearing of the proceeding in which the referral is sought. Even if such a referral could then be made, in the circumstances of the present appeal it is not considered to be " in the interests of the administration of justice " to make such a referral. Although the phrase " the interests of justice " is " wide " ( Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10] per French J), the " nature and complexity of the proceeding " does not warrant the making of any such referral. And it is not considered that either the application for review as made to the Federal Magistrates Court or to this Court on appeal exposes any argument which has any real prospects of success. An assessment as to prospects of success is relevant to the exercise of the " broad discretion " conferred by O 80 r 4: Rivera v Minister for Home Affairs [2008] FCA 1 at [6] [8] per Tamberlin J. Moreover, the now Appellant had the benefit of legal assistance prior to the hearing before the Federal Magistrates Court. Such assistance as may otherwise have been warranted was most appropriately received at the hearing before the Federal Magistrates Court rather than on appeal.


case_text: It was for the applicant to satisfy the Tribunal that the applicant met each of the relevant criteria for the grant of the visa. It was for the applicant to put forward any evidence in support of her application and make whatever submissions she wished to establish that she came within the relevant criteria in the Regulations: Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576. 33 The applicant's application did not require the Tribunal to review the decision of the Minister's delegate to refuse Shark Australia's nomination. In my opinion, no separate duty rested upon the Tribunal to inquire into the decision to refuse Shark Australia's nomination. It would have been pointless for the Tribunal to further inquire into that other decision. That is so because no-one who could seek a review had done so. 34 The question before the Tribunal was whether the decision made by the delegate of the Minister in relation to the refusal of the applicant's application for a visa ought to be affirmed or otherwise. On the information that was before the delegate, it was inevitable that the decision had to be affirmed, as it was. The appellant did not put any material before the Tribunal which the Tribunal failed to consider. The appellant did not attend the Tribunal hearing and her claims were limited to the very brief statements in the letter of 29 May 2005.


case_text: In Tvarkovski v Minister for Immigration and Multicultural Affairs [2001] FCA 375 , Goldberg J said at [30]-[31]: ' 30 It is an accepted principle of administrative law that the jurisdiction given to a body to review an administrative decision generally extends to a consideration of the decision maker's findings or conclusions which contribute to the final or operative decision: see Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 338 per Mason CJ. The application of this principle to the Tribunal's decision means that the Tribunal was entitled to review, and should have reviewed, the whole process of decision making in relation to the applicant's visa, which included that part of the decision making process which determined that the applicant had not been nominated in accordance with reg 5.19. 31 I am satisfied that the Tribunal had the power to consider the reg 5.19 issues as part of its review of the decision to refuse the visa application. The Tribunal fell into an error of law by failing to turn its mind to whether the visa criteria were satisfied by reference to the reg 5.19 definitions. The Tribunal precluded itself from considering the reg 5.19 issues by misconstruing the regulations and determining that there was no right of review in respect of employment nominations before 1 July 1999.' 31 In this case, the decision to refuse Shark Australia's nomination was not reviewable by the Tribunal for the two reasons which I have mentioned. First, it was not an MRT-reviewable decision. Secondly, if it was, it was only reviewable at the instigation of Shark Australia.


case_text: review also disclosed a prospect, though not, as yet the actuality, of what was memorably described in an earlier edition of Bullen & Leake & Jacob's Precedents of Pleadings (12 th Ed, 1975, Sweet & Maxwell at 113-114) as "the particulars game", i.e. where parties deliberately engage in mutual brinkmanship as to the concealing and revealing of their respective cases, see, further, Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 2) [2009] FCA 237 at [7] and [8]. Be this as it may, the ACCC and Mr Day have each filed notices of motion which require determination of the applications they respectively make in respect of these issues of practice and procedure. The issues raised are not unrelated but I shall nonetheless consider each in turn. The Amended Defence Whether any of the many complaints made by the ACCC in respect of the adequacy of the amended defence are warranted requires a consideration of the whole of that pleading in the context of the response it makes to the statement of claim. That makes it desirable to set out in full each of these pleadings. It would detract from continuity and ready comprehensibility of reasoning so to do in the main body of this judgement. I therefore annex the pleadings to it.


case_text: following statement by Murphy, Wilson, Brennan, Deane and Dawson JJ in Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 654 remains pertinent to the role of pleadings and particulars as provided for by O 11 and O 12 of the Federal Court Rules : Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ( Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81 ; (1916) 22 CLR 490 , at p 517 ; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ( Miller v. Cameron [1936] HCA 13 ; (1936) 54 CLR 572 , at pp 576-577 ; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195 , at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ( Mummery v. Irvings Pty. Ltd. [1956] HCA 45 ; (1956) 96 CLR 99 , at pp 111, 112, 127 ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence ( Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437 , at p 446; 50 ALJR 666 , at p 668 ).


case_text: Australian Competition and Consumer Commission v Pauls Ltd [1999] FCA 1750 at [10] , with reference to sentiments to that effect then recently expressed by Wilcox J in Coshott v Kam Tou Mak [1998] FCA 147 , O'Loughlin J observed that there was a contemporary tendency against the taking of a pedantic approach to a pleading. A decade later that remains the case. Further, a pleading must be read as a whole. The countervailing consideration is whether, accepting it must be so read, the pleading fairly puts the other party on notice as to the case to be met. A pleading is but a means to the achievement of procedural fairness and of the efficient use of judicial resources and those of the parties by the identification of what is truly at issue.


case_title: Coshott v Kam Tou Mak [1998] FCA 147


case_text: 11, rule 18 was relied upon by the ACCC. In that regard, my attention was helpfully drawn to the reference to that rule by French J (as his Honour then was) in Smith v Barron [2004] FCA 1596 ; (2004) 139 FCR 566 at 575-576 as part of his Honour's rationale for striking out a defence which consisted mostly of bare denials including a bare denial in respect of a particular paragraph of a statement of claim which made detailed factual allegations as to events in a particular period by reference to which it was alleged that there were reasonable grounds for suspecting that a company was either insolvent or would become insolvent by reason of incurring those debts. His Honour contrasted these bare denials with an affidavit read before him in which, on information and belief sourced from the company's directors, it was attested that they had reasonable grounds to expect and did expect that the company would be able to pay its debts at these times and with the requirement, found in the certificate in Form 15B which must accompany a pleading and derived from O 11 r 1B, that, inter alia, a legal practitioner certify that there existed a reasonable basis for the denial of allegations. His Honour also drew attention to particular matters alleged in the statement of claim that had not really been disputed by the director concerned in his public examination. Against this background, it becomes apparent why his Honour reached the conclusion that the defence filed was really just a "holding defence" rather than an attempt in good faith to plead to the statement of claim. This case is different. In its prescription that a defence ought not to be pleaded in an evasive way, O 11 r 18 emphasises a principle of pleading practice which is a subset of the more general requirements, found in O 11 r 16(b) and r 16(c) respectively, that a pleading must not have a tendency to cause prejudice, embarrassment or delay to a proceeding or constitute an abuse of process. In the face of a statement of claim noteworthy for its temporal imprecision, it is not, for example, evasive, to admit, as this defence does (para 3.1), that " for a period of time prior to June 2008 [Mr Day] was a managing director of [Craftmatic] ". Nor is it necessarily evasive to admit that one was but "a", rather than "the" managing director. One of the rules with respect to corporations, replaceable by virtue of s 135 of the Corporations Act 2001 (Cth), is that found in s 201J of that Act, which provides, " The directors of a company may appoint 1 or more of themselves to the office of managing director of the company for the period, and on the terms (including as to remuneration), as the directors see fit " (emphasis added) . Further, even if Craftmatic did have but one managing director at any given time, the difficulty with this statement of claim is in ascertaining what is that given time. Mr Day's obligation is to respond to the allegation made, not to speculate by making an admission as to a period of office-holding which may be irrelevant to the contraventions alleged. There is no doubt that O 11 r 18 is directed to the end of requiring a party responding to a pleading to identify what truly are the issues of fact which remain controversial in the proceeding. Other rules directed to that end are, in their application to a defence, O 11 r 1B and r 16, already mentioned, and O 11 r 13 and r 17.


case_title: Warner v Sampson [1959] 1 QB 297

case_text: 11 rule 13(2) expressly authorises a traverse by a "statement of specific non-admission". Paragraphs 6 and 7 of the amended defence each comply with that authorisation. In so doing on the basis of an alleged absence of knowledge on the part of Mr Day, they also each exemplify the observation made in Lindgren KE and Branson CM, Federal Civil Litigation Precedents (Butterworths, 1998 at [24,210]) that, "denial is usually employed where the alleged fact is in a party's knowledge and a non-admission where it is not". I respectfully agree with that observation. The practical effect of an express non-admission is the same as that of an express denial ( Warner v Sampson [1959] 1 QB 297 at 319 per Hodson LJ) in that the opposing party is thereby put to proof of the issue but the difference between the two lies in the occasion for their employment as a matter of pleading practice. Paragraph 8 of the amended defence responds to para 7 of the statement of claim. In the way in which it is cast, para 7 of the statement of claim also makes "rolled up" allegations in that it conjoins allegations in respect of the separate matters of the provision of a script and the giving of instructions for the use of that script. Mr Day admits that a script was available but otherwise expressly does not admit the allegations in para 7 of the statement of claim on the basis of absence of knowledge. This he is entitled to do. On behalf of the ACCC criticism is further made of the way in which Mr Day's amended defence responds to the allegations as to his knowledge of pleaded facts. Allegations as to his knowledge are to be found in para 10, 15, 24 and 34 of the statement of claim with the responses to these allegations being found in para 10, 13, 27 and 37 of the amended defence. The responses take the form of express non-admissions on the basis of absence of knowledge. A noteworthy feature of these paragraphs of the amended defence is their engagement with para 3.5 of that document. In para 3.5, in some detail, Mr Day makes positive allegations as to the management and control of Craftmatic and as to the nature and extent of his involvement in that management and control. It is submitted on behalf of the ACCC, with reference to the responsive paragraphs of the amended defence, as read with para 3.5, that, "These paragraphs are in substance and effect pleadings of circumstances by which it might be that [Mr Day] does not know particular things but are vague and evasive and do not address the pleaded issue of whether he knows those particular things (underlining in written submission)". Thus, it is submitted, para 3.5 does not amount to an allegation of material facts, contrary to O 11 r 2. A more detailed critique, which I have taken into account, of para 3.5 follows to the end of seeking to demonstrate that para 3.5 is evasive.


case_text: the offences charged the most serious are those relating to the baby walkers. The two charges are linked. The prosecutor's investigation of the conduct of the defendant in marketing the baby walkers was commenced following a complaint from a member of the public who had purchased a walker from the defendant through the internet. The prosecutor then arranged for similar walkers to be purchased from the defendant and caused them to be subjected to analysis. As already noted, this analysis revealed that the walkers did not comply with standards prescribed pursuant to s 65C of the Act . Proceeding VID 385 of 2006 relates to the 'controlled' supply of the walkers to an officer employed by the prosecutor. Proceeding VID 388 of 2006 relates to the supply of the walker to the member of the public who complained to the prosecutor. Any supply of the walkers would constitute a breach of s 75AZS(1) of the Act . Forty seven such sales were admitted. Charges have only been laid in respect to the sales to the prosecutor and the complainant. Of the two sales the one to the complainant is the one in respect of which the defendant bears the greater degree of culpability. It was to be used by her daughter and would have been had the complainant not been alert to the deficiencies in the product and the absence of labelling. The walkers purchased by the investigator were not destined for use by any child. In considering the quantum of the penalties for these two offices (and, indeed, all the penalties to be imposed) I am required also to give effect to the totality principle in order to avoid a crushing aggregate penalty and to ensure, so far as is possible, that the aggregate penalty reflects the totality of the criminality involved: Australian Competition and Consumer Commission v Chubb Security Australia Pty Ltd [2004] FCA 1750 at [141] [143]. Having regard to all the circumstances I consider that the appropriate penalty in proceeding VID 388 should be $450,000 and in proceeding VID 385, $50,000. The offence relating to the statement that the cots complied with Australian standards when they did not is also serious. No fewer than 15 departures from the prescribed standard were identified. I consider that a penalty of $350,000 is warranted in proceeding VID 386. The final offence concerned the notice which advised customers that refunds were not available for products sold by defendant during a stock clearance. In my view an appropriate penalty in proceeding VID 387 is $10,000. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 18 October 2006 Counsel for the Prosecutor: Ms Michelle Hodgson Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions Counsel for the Defendant: No Appearance Date of Hearing: 3 October 2006 Date of Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1343.html


case_outcome: referred to

case_text: consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] .


case_title: Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528


case_text: consideration, which is not specifically referred to in s 16A of the Crimes Act but which has assumed considerable importance in the case law which has developed in relation to Part V of the Act , has been general deterrence. The absence of specific reference to general deterrence has not been interpreted as meaning that it is not a relevant consideration. The contrary is true: R v Sinclair (1990) 51 A Crim R 418 at 430. In many cases decided under the Act , this Court has placed considerable emphasis on general deterrence as being an important factor to be brought to account where penalties or sentences are imposed for contraventions of Part V. This approach finds support in the expressed object of the Act 'to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection' (see s 2) and the significant monetary penalties, provided for in the Act , for contravention of consumer protection provisions such as those presently under consideration. It has become accepted that the imposition of substantial penalties for breaches of provisions which are designed to protect consumers, will serve to alert members of the business community to the provisions of the Act and the serious consequences which may flow from their contravention: see eg Pugh v Clark Rubber Limited (1993) ATPR 41-258 at 41, 473; Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321 at 42, 269; Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [24] . This principle has been applied even where defendant companies have gone into liquidation and there is no realistic prospect of a substantial monetary penalty ever being paid: see eg Australian Competition and Consumer Commission v Vales Wine Company Pty Ltd (1976) ATPR 41-528 at 42, 776; Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2004] FCA 376 at [23] - [25] . In Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [10] - [12] Weinberg J noted certain observations of French J in Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779 at 48, 502 to 48, 503 which he found to be a helpful statement of the principles which governed the determination of penalties to be fixed for breaches of the consumer protection provisions of the Act . His Honour held that these principles remained relevant notwithstanding the introduction of s 16A of the Crimes Act . The relevant observations of French J in Gardam are: 'The appropriate level of penalty to be fixed will vary according to the circumstances of each case and the class of relevant considerations is not closed. Nevertheless it appears to be well established that the following matters are relevant to the punishment to be imposed. 1 The objectives of the Act . 2 The importance of any untrue statements made. 3 The degree of wilfulness or carelessness involved in making such a statement. 4 The extent to which the statements in question depart from the truth. 5 The degree of their dissemination. 6 The result in prejudice to consumers. 7 Whether any and if so what efforts have been made to correct the statements. 8 The need to impose deterrent penalties. The sections of the Act which provide for the declaration of consumer product safety standards and their enforcement are plainly of the highest importance. ... In the present case the offences were not committed wilfully or with any intention to deceive. Their commission was the product of carelessness and lacks management. As Smithers J said in Geoffrey John Eva v Mazda Motors (Sales) Pty Ltd .... "....contraventions due to carelessness are not permissible and must be punished. Of course such contraventions are not in the same order as culpability as those involving an intention to deceive."'


case_text: Australian Competition and Consumer Commission v Dimmeys Stores Pty Ltd [1999] FCA 1175 at [10] - [12] Weinberg J noted certain observations of French J in Gardam v Splendid Enterprises Pty Ltd (1987) ATPR 40-779 at 48, 502 to 48, 503 which he found to be a helpful statement of the principles which governed the determination of penalties to be fixed for breaches of the consumer protection provisions of the Act . His Honour held that these principles remained relevant notwithstanding the introduction of s 16A of the Crimes Act . The relevant observations of French J in Gardam are: 'The appropriate level of penalty to be fixed will vary according to the circumstances of each case and the class of relevant considerations is not closed. Nevertheless it appears to be well established that the following matters are relevant to the punishment to be imposed. 1 The objectives of the Act . 2 The importance of any untrue statements made. 3 The degree of wilfulness or carelessness involved in making such a statement. 4 The extent to which the statements in question depart from the truth. 5 The degree of their dissemination. 6 The result in prejudice to consumers. 7 Whether any and if so what efforts have been made to correct the statements. 8 The need to impose deterrent penalties. The sections of the Act which provide for the declaration of consumer product safety standards and their enforcement are plainly of the highest importance. ... In the present case the offences were not committed wilfully or with any intention to deceive. Their commission was the product of carelessness and lacks management. As Smithers J said in Geoffrey John Eva v Mazda Motors (Sales) Pty Ltd .... "....contraventions due to carelessness are not permissible and must be punished. Of course such contraventions are not in the same order as culpability as those involving an intention to deceive."'


case_title: Miller v Cunningham's Warehouse Sales Pty Ltd (1994) ATPR 41-321


case_title: Pugh v Clark Rubber Limited (1993) ATPR 41-258


case_title: R v Sinclair (1990) 51 A Crim R 418


case_text: Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.'


case_outcome: discussed

case_text: Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 Sheppard J (at 373E) (in dissent as to the result) expressed the opinion that only irregularities of a procedural kind are able to be cured by s 1322. Carr J (with whom Lockhart J agreed) seemed to proceed upon the same basis but took a wide view of matters which were essentially of a procedural nature (398 400). The issue that arises here does not appear to have been argued. In Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.' Whilst the syntax of the provision is not as clear to me as it was to Emmett J, the appropriate course is to follow his Honour's decision, which was operative in the case before him, rather than what amounts to obiter dicta of the members of the Full Court in Comcorp . Judges of the Supreme Courts of New South Wales and Victoria have taken a view similar to that of Emmett J and consistency of decisions in this area is desirable. It was appropriate to make the order without any other party being joined. Each of ASIC and Australian Prudential Regulatory Authority (APRA) has been advised about the proceedings and neither has indicated any substantive opposition to the making of the order. There is no other natural contradictor. There was a second problem. One of the conditions of exemption was that the plaintiffs would not exercise votes attached to NAB shares nor control or influence the exercise of votes attached to NAB shares. This condition was breached on a number of occasions, essentially because of the operation of an automated proxy voting system in relation to the Annual General Meeting of NAB held on 30 January 2006. There have been substantial purchases of NAB shares by the plaintiffs since 30 January 2006.


case_text: Cordiant Communications (Australia) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005 ; (2005) 194 FLR 322; (2005) 55 ACSR 185, Palmer J expressed the opinion that s 1322(4) can be utilised to validate a substantive rather than a procedural irregularity ([97] and [134]) without referring to authority.


case_text: am satisfied that the circumstances are appropriate for an order to be made pursuant to s 1322(4)(a) ( Re Westpac Banking Corporation (2004) 53 ACSR 288; and Re Commonwealth Bank of Australia (2005) 57 ACSR 28) if the plaintiffs satisfy the conditions in s 1322(6). The relief sought assumes that non-compliance with the condition of exemption results in the exemption ceasing to operate. Emmett J took that view in Re Commonwealth Bank of Australia at [15] and ASIC takes the same view. On that basis, relief pursuant to s 1322(4)(a) is appropriate if the conditions pursuant to s 1322(6) are met. I am satisfied that the casting of the votes did not affect the result of the vote taken upon any resolution. I am satisfied that the relevant non-compliance was inadvertent and that the persons concerned acted honestly. I am satisfied that no substantial injustice has been or is likely to be caused to any person by the making of the order. I am also satisfied that it is just and equitable that the order be made. The conditions pursuant to s 1322(6) are satisfied. I am satisfied that it was appropriate to make the order in the absence of the joinder of another party. For those reasons I made the orders sought in substance. The orders followed the form of the section by validating the transactions. The effect of those orders is that the transactions are not void. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 October 2006 Counsel for the Plaintiffs: Mr MA Pembroke SC, Mr T Maltz Solicitor for the Plaintiffs: Mallesons Stephen Jaques Date of Hearing: 13 October 2006 Date of Orders: 17 October 2006 Date of Reasons for Judgment: 18 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1357.html


case_text: am satisfied that the circumstances are appropriate for an order to be made pursuant to s 1322(4)(a) ( Re Westpac Banking Corporation (2004) 53 ACSR 288; and Re Commonwealth Bank of Australia (2005) 57 ACSR 28) if the plaintiffs satisfy the conditions in s 1322(6). In Jordan v Avram (1997) 141 FLR 275; (1997) 25 ACSR 153 Gillard J accepted that the conditions are not cumulative, relying upon Australian Hydrocarbons NL v Green (1985) 10 ACLR 72 at 83, but without noticing Comcorp. I have difficulty in seeing how the decision of Hodgson J in Australian Hydrocarbons establishes the proposition in question. However, in Re Westpac Banking Corporation , Emmett J, having referred to Comcorp , said (at [27]): 'I consider that the syntax of s 1322(6)(a) is quite clear in contemplating that only one of the three paragraphs of s 1322(6)(a) needs to be satisfied in order to authorise the making of an order.'


case_text: primary criterion in cl 679.224 to be met by the visa applicant is that the visa applicant satisfies the Minister that the expressed intention of the visa applicant only to visit Australia is genuine. Clearly reaching a level of satisfaction one way or the other is a factual issue. Notwithstanding this, the decision reached by the Minister as to whether he or she is satisfied is not unexaminable. As observed by Dixon J in Avon Downs Pty Ltd v FCT [1949] HCA 26 ; (1949) 78 CLR 353 at 360 in relation to the satisfaction (or not) of the Commissioner of Taxation in the circumstances of that case. If he does not address himself to the question which the subsection formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. (cf Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at [8] )