case_text: Further, the Commission submits that, as a government agency, the discretionary factors to be applied regarding its position may be approached differently to those of a commercial litigant. The Commission points to the decision of Jacobson J in Pacific National (ACT) Ltd v Queensland Rail (2005) 215 ALR 544 at 560 where his Honour cited P & C Cantarella v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383 per Mahoney JA: The duty of the executive branch is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to a particular case, it is open to the executive to approach the court, or afford the citizen the opportunity for approaching the court, to clarify the matter. Where the matter is before the court, it is the duty of the executive to assist the court to arrive at the proper and just result.


case_outcome: cited

case_text: Telstra relies upon s 16(1)(c) of the ADJR Act to support its application for a declaration that the decision to issue the Competition Notice was invalid. That subsection may extend to any matter connected with an impugned decision that is appropriate to be dealt with by the grant of declaratory relief ( Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637 at 644). However, s 16(1)(c) provides for a declaration in respect of a matter to which the decision relates, not the decision itself.


case_text: Section 46 of the Interpretation Act is applied as a rule of construction to permit the reading down of instruments. It is not a rule of law ( Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at [16] per Black CJ referring to Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110 per Latham CJ). The Commission has not referred to anything in the Act or in any extrinsic legislative materials to support the proposition that s 46 extends beyond such a limited application. Section 46 of the Interpretation Act concerns the construction of instruments. Both ss 46(1)(c) and 46 (2) provide for a construction to be applied. To read and construe an instrument by the application of s 46(1)(c) is not to rewrite it or to ignore its content. Section 46 has no application to a decision made under an Act. It has no application to a denial of procedural fairness. 84 Severance is more likely when separable words or expressions are used and the test for severance is qualitative rather than quantitative ( Pidoto at 110-111 per Latham CJ). There is no separate specification in s 46(2) of the Interpretation Act that it apply subject to a contrary intention. However, s 2 of the Interpretation Act still applies.


case_text: As stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] : An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. 71 The Act does provide for the possibility of variation of a Part A competition notice but specifies in s 151AOA that, while the notice is in force, variation can only be of a minor nature. The proposed variations cannot be said to fall into this category. 72 Part XIB does not envisage that a Part A competition notice may issue with retrospective effect. If an invalid Part A competition notice were subsequently validated by the application of s 46 of the Interpretation Act , the re-construed or amended notice would have retrospective effect for the period that the initial Part A competition notice would have been in force.


case_title: P & C Cantarella v Egg Marketing Board (NSW) [1973] 2 NSWLR 366


case_text: Severance does not answer the fact that the decision to issue the Competition Notice was not properly made. The condition precedent to its issue had not been complied with. The statutory scheme for consultation prior to the issue of a Part A competition notice is rendered redundant if, once it is found that the procedure was not followed, the Part A competition notice is retrospectively altered to equate "on its face" with the s 151AKA(10) notice. That makes a mockery of the intention of Pt XIB of the Act. Severance is not available in such circumstances ( Sportodds Systems Pty Limited v New South Wales [2003] FCAFC 237 ; (2003) 133 FCR 63 at [19] [24]). As the Full Court said in Sportodds at [18]-[19] in relation to s 15A of the Interpretation Act : Notwithstanding the broad terms in which these provisions are expressed, the statutory provisions are nevertheless limited...This limits the extent to which a court can redraft a statutory provision. ... But the essential issue remains is the court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the court itself making legislation? 90 To overcome the denial of procedural fairness found in Telstra No 2 , the Commission says that, if the Competition Notice is construed by applying s 46 to read down the notice by adopting the alternative construction advanced by the Commission or read to disregard those parts that refer to Lower Spend Customers and bundling issues, there was no problem with procedural fairness as those parts of the Competition Notice were not operative. In the Commission's submission, the Competition Notice identified a number of independent kinds of anti-competitive conduct. It says that, on severance of the kinds of conduct not described in the Consultation Notice, Telstra was given the opportunity to consult on the kinds of conduct that remain. As a consequence, the Commission submits, there is no longer a procedural fairness issue to be considered. The denial of procedural fairness simply disappears. This submission has an air of unreality and demonstrates a reason why s 46 does not apply where there has been jurisdictional error. 91 I do not accept that the offending parts of the Competition Notice can be severed as proposed by the Commission.


case_text: Before embarking on the process of reading down, there must be some part of the impugned provision that is capable of being within power. While s 46(2) of the Interpretation Act may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power. As with s 15A, s 46 does not turn an Act or instrument which is invalid as being wholly outside legislative power into an Act which is, in part, within power ( Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 ; (1971) 124 CLR 468 at 504 per Menzies J and cited by Black CJ in Vanstone at [17]).


case_text: There was therefore a failure on the part of the Commission to comply with the procedures required by law to be observed. The pre-condition for the issue of the Competition Notice was not met. A failure to comply with mandatory procedures constitutes jurisdictional error ( SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [13]). If there was no authorised decision to issue a Part A competition notice, the Competition Notice did not accord with the [2002] HCA 11 ; Act ( Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [43] and [51] per Gaudron and Gummow JJ).


case_text: Each of Telstra and the Commission submit that its form of declaration encapsulates the result in Telstra No 2 . It is of interest that, in written submissions and correctly, Telstra characterises that result as a decision ' that the Competition Notice was invalid '. The issues that fell for consideration concerned the Competition Notice and the Consultation Notice, not the reasoning behind the issue of those notices. Telstra's claims turned upon the construction of the Competition Notice and the Consultation Notice, a comparison between them and a evaluation of the requirements of s 151AKA(2) of the Act. Telstra did not allege that the Commission had no reason to believe that Telstra had engaged or was engaging in the relevant anti-competitive conduct or that the notices were issued for a collateral or improper purpose. There was no consideration of the decision-making process of the Commission ( Telstra Corporation Ltd v Australian Competition and Consumer Commission (2006) 68 IPR 571). 108 I am not satisfied that Telstra is entitled to the declaration of invalidity of the decision that it seeks or that, were an order to be made that the Competition Notice be quashed ab initio, there is utility in making that declaration. I am not satisfied that it is appropriate to make an order quashing the decision. The form of declaration proffered by the Commission is sufficient to give effect to the reasons in Telstra No 2 . The orders will quash the Competition Notice and set aside, not quash, the decision to issue the Competition Notice. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 11 December 2007 Counsel for the Applicant: T F Bathurst QC; J E Griffiths SC; J K Kirk Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the First Respondent: L G Foster SC Solicitor for the First Respondent: Corrs Chambers Westgarth Date of Hearing: 8 May 2007; 7 June 2007; 10 July 2007 Date of Judgment: 12 December 2007 ANNEXURE A TRADE PRACTICES ACT 1974 Part A Competition Notice issued pursuant to section 151AKA(2) The Proper Officer Telstra Corporation Limited (ACN 051 775 556) Level 41, 242 Exhibition Street MELBOURNE VIC 3000 PREAMBLE This notice is a Part A competition notice issued by the Australian Competition and Consumer Commission (the Commission ) pursuant to section 151AKA(2) of the Trade Practices Act 1974 (the Act ) to Telstra Corporation Limited (ACN 051 775 556) ( Telstra ). DEFINITIONS AND INTERPRETATION 1. In this notice: a. Fixed Voice Services means the following residential telephony services supplied by way of a PSTN: .109 Local Services; 110 fixed-to-mobile call services; 111 national long distance call services; and 112 international call services; b. Home Access increase has the meaning given in paragraph 5.c; c. HomeLine Part increase has the meaning given in paragraph 5.a; d. Local Services means residential line rental and local call services supplied for the end-use of Retail Customers, whether supplied on a retail or wholesale basis; e. PSTN means a Public Switched Telephone Network; f. PSTN OTA Charges means charges levied by a carrier or carriage service provider in respect of the supply of originating and terminating access to its PSTN; g. Retail Customers means end-user customers throughout Australia who acquire Local Services and who may also acquire other Fixed Voice Service(s); h. Retail FVS Market has the meaning given in paragraph 7.b; i. Retail Price means the price at which Retail Customers are supplied with Fixed Voice Services; j. Retail Transformation Costs mean the incremental or avoidable costs of transforming Local Services and PSTN originating and terminating services into services suitable for retail supply, including costs associated with customer acquisition and the development and maintenance of support systems necessary for retail supply, such as billing systems; k. Telstra's Rivals means: 113 Telstra's Wholesale Customers; and 114 Telstra's prospective Wholesale Customers, who compete or would compete in the Retail FVS Market on a basis that is no less efficient than Telstra; l. Total Cost means, in respect of a Fixed Voice Service supplied to Retail Customers, the sum of: 115 the Wholesale Price; 116 the PSTN OTA Charges; and 117 the Retail Transformation Costs, relating to the supply of that Fixed Voice Service; m. Wholesale Customers means carriers or carriage service providers who acquire Local Services for use in the supply of Fixed Voice Services to Retail Customers; n. Wholesale Local Services Market has the meaning given in paragraph 7.a; and o. Wholesale Price means the price at which Telstra supplies Telstra's Wholesale Customers with Local Services. 2. In this notice: a. the singular includes the plural and the plural includes the singular; b. a defined word appearing in another grammatical form has the equivalent meaning; and c. unless the contrary intention appears, words used in this notice which are defined in section 151AB of the Act have the same meaning as given in section 151AB. SECTION 151AKA(2) STATEMENT 3. Telstra has engaged, and is engaging, in at least one instance of anti-competitive conduct of a kind described in this notice. REASON TO BELIEVE 4. The Commission has reason to believe that Telstra has engaged, and is engaging, in at least one instance of anti-competitive conduct of a kind described in this notice. THE CONDUCT 5. Telstra has engaged in the following conduct: a. Effective 1 December 2005, Telstra imposed an increase in the Retail Price of one of its Local Services products, HomeLine Part (the HomeLine Part increase ). Table A of Schedule 1 provides details as to the Retail Price at which Telstra supplied HomeLine Part immediately before the HomeLine Part increase and immediately after the HomeLine Part increase. Explanatory note: HomeLine Part permits a Retail Customer to acquire its Local Services from Telstra, but to "pre-select" other providers in respect of all or any of the other Fixed Voice Services. Consequently, HomeLine Part enables Telstra's competitors to supply Fixed Voice Services (other than Local Services) to HomeLine Part customers on a pre-selection basis. b. At the time of the HomeLine Part increase, Telstra did not increase the Retail Price of any of its other Fixed Voice Services products. c. Effective 5 December 2005, Telstra imposed an increase in the Wholesale Price of the monthly charge for a wholesale basic telephone service with its Local Services product, Home Access (the Home Access increase ). Schedule 2 provides details as to the Wholesale Price at which Telstra supplied a wholesale basic telephone service with Home Access immediately before the Home Access increase and immediately after the Home Access increase. Explanatory note: Home Access is a wholesale input used by Telstra's Wholesale Customers to provide line rental and local call services (i.e. Local Services) products to Retail Customers. d. At the time of the Home Access increase, Telstra did not increase the Retail Price of its Local Services products or any of its other Fixed Voice Services products. Table B of Schedule 1 provides details as to the key Retail Prices at which Telstra supplied its various Fixed Voice Services products immediately before the Home Access increase and Table C of Schedule 1 provides details of Telstra's key Retail Prices after the Home Access increase. e. Telstra actively promoted the implications of its new pricing structure for its various Fixed Voice Services to Retail Customers. f. From at least 5 December 2005 to the present and continuing: 118 Telstra has supplied, and continues to supply: 119 Local Services to Telstra's Wholesale Customers at the Wholesale Price applicable immediately after the Home Access increase; and 120 Fixed Voice Services to Retail Customers at Retail Prices which are materially unchanged from those applicable immediately after the Home Access increase; 121 Telstra has refused, and continues to refuse, to supply: 122 Local Services to Telstra's Wholesale Customers other than at the Wholesale Price applicable immediately after the Home Access increase, except in limited circumstances; and 123 Fixed Voice Services (other than new products introduced since the Home Access increase) to Retail Customers other than at Retail Prices which are materially unchanged from those applicable immediately after the Home Access increase. CARRIER 6. Telstra is and was at all material times a carrier. TELECOMMUNICATIONS MARKETS 7. At all material times, there were and are markets in Australia that are no wider than markets for: a. the supply and acquisition of wholesale Local Services (the Wholesale Local Services Market ); and b. the supply and acquisition of retail Fixed Voice Services (the Retail FVS Market ). 8. Each market identified above at paragraph 7 is a telecommunications market. MARKET POWER 9. In the supply of Local Services in the Wholesale Local Services Market, Telstra is not materially constrained by the conduct of: a. Telstra's competitors and potential competitors in the Wholesale Local Services Market; or b. persons to whom or from whom Telstra supplies or acquires goods or services in the Wholesale Local Services Market, as demonstrated by, inter alia : c. Telstra's ownership and control of network infrastructure, including the only PSTN with near-Australia wide coverage, which is essential for supplying wholesale Local Services; d. Telstra's high and stable market share; e. the high barriers to entry into the Wholesale Local Services Market, including the existence of large sunk costs and economies of scale and scope; f. Telstra's strong degree of vertical integration in supplying network, wholesale and retail telecommunications services; and g. the lack of countervailing power on behalf of Telstra's Wholesale Customers, other potential wholesale purchasers of Local Services, and Retail Customers. 10. Accordingly, and without prejudice to the Commission's views in respect of any other telecommunications market, Telstra has a substantial degree of power in the Wholesale Local Services Market. TAKING ADVANTAGE OF MARKET POWER 11. Telstra has taken and is taking advantage of its market power in the Wholesale Local Services Market by engaging in the conduct described in paragraph 5. EFFECT OR LIKELY EFFECT ON COMPETITION 12. The conduct described in paragraph 5 had and has the effect or likely effect of substantially lessening, preventing or hindering competition in the Retail FVS Market in one or more of the following respects: a. by raising the costs of Telstra's Rivals, and thereby: 124 substantially reducing the incentives of Telstra's Rivals to engage in competitive activity to acquire new Retail Customers and to retain existing Retail Customers; and / or 125 resulting in higher Retail Prices for Fixed Voice Services than would otherwise be the case in a competitive market; b. by substantially increasing the barriers which prevent or hinder Telstra's Rivals from entering into or expanding within the Retail FVS Market, in at least one or more of the following respects; i. adversely affecting the capacity of Telstra's Rivals to generate or to maintain sufficient business to develop and to take advantage of economies of scale and scope; and 126 reducing the ability of Telstra's Rivals to expand product offerings and to invest in or to deploy new infrastructure and / or alternative technology in order to develop and to supply new and innovative products (particularly in the form of facilities-based competition) which may, in the long run, result in more efficient delivery of services; c. by threatening the viability of at least some of Telstra's Rivals. KINDS OF ANTI-COMPETITIVE CONDUCT 13. Each of the following kinds of conduct is a kind of anti-competitive conduct described in this notice: a. conduct by Telstra of the kind referred to in paragraph 2; b. conduct by Telstra of the kind referred to in paragraph 5, and where that conduct has the effect or likely effect of substantially lessening, preventing or hindering competition in a telecommunications market as referred to in paragraph 12. DURATION 14. This notice comes into force on 13 April 2006. 15. This notice remains in force until 12 April 2007. DATED: April 2006 .................................................. Graeme Samuel Chairman Australian Competition and Consumer Commission SCHEDULE 1 TABLE A: TELSTRA'S RETAIL PRICE FOR HOMELINE PART HomeLine Part monthly line rental price immediately before 1 December 2005 increase HomeLine Part monthly line rental price immediately after 1 December 2005 increase $26.95 (including GST) $31.95 (including GST) TABLE B: TELSTRA'S KEY RETAIL PRICES FOR FIXED VOICE SERVICES PRODUCTS [1] IMMEDIATELY BEFORE HOME ACCESS INCREASE (including GST) HomeLine Advanced HomeLine Plus HomeLine Complete HomeLine Budget HomeLine Part Monthly Line Rental $35.95 $29.95 $26.95 $18.50 $31.95 [2] Local Calls (per call) 15c 17.5c 20c 30c 22c STD Calls Capped STD Calls STD calls capped between 7pm (4pm Saturdays) and midnight or Everyday STD option $2.50 per call 24 hours, 7 days for calls up to 3 hours or $1.49 per call 24 hours, 7 days for calls up to 20 minutes Not Available Not Available $1.49 $1.50 per call $2.50 $1.49 $2.00 per call Not Available Not Available $3.00 per call Not Available Not Available Not Available Not Available Not Available Mobile Calls [3] Fixed to Mobile rate (to non-Telstra mobile) Fixed to Mobile rate (to Telstra mobile) 37 cents a minute 33 cents a minute 37 cents a minute 33 cents a minute 37 cents a minute 33 cents a minute 42 cents a minute 37 cents a minute 42 cents a minute 37 cents a minute International Calls Rates vary depending on country Rates vary depending on country Rates vary depending on country Rates vary depending on country TABLE C: TELSTRA'S KEY RETAIL PRICES FOR FIXED VOICE SERVICES PRODUCTS [4] IMMEDIATELY AFTER HOME ACCESS INCREASE HomeLine Advanced HomeLine Plus HomeLine Complete HomeLine Budget HomeLine Part Monthly Line Rental $35.95 $29.95 $26.95 $18.50 $31.95 [5] Local Calls (per call) 15c 17.5c 20c 30c 22c STD Calls Capped STD Calls STD calls capped between 7pm (4pm Saturdays) and midnight or Everyday STD option $2.50 per call 24 hours, 7 days for calls up to 3 hours or $1.49 per call 24 hours, 7 days for calls up to 20 minutes Not Available Not Available $1.49 $1.50 per call $2.50 $1.49 $2.00 per call Not Available Not Available $3.00 per call Not Available Not Available Not Available Not Available Not Available Mobile Calls [6] Fixed to Mobile rate (to non-Telstra mobile) Fixed to Mobile rate (to Telstra mobile) 37 cents a minute 33 cents a minute 37 cents a minute 33 cents a minute 37 cents a minute 33 cents a minute 42 cents a minute 37 cents a minute 42 cents a minute 37 cents a minute International Calls Rates vary depending on country Rates vary depending on country Rates vary depending on country Rates vary depending on country Note: no material changes from the Retail Prices which applied immediately before Home Access increase. SCHEDULE 2 WHOLESALE PRICE FOR HOME ACCESS LINE RENTAL Monthly charge for a wholesale basic telephone service with Home Access immediately before the Home Access increase Monthly charge for a wholesale basic telephone service with Home Access immediately after the Home Access increase $24.50 (excluding GST) $27.60 (excluding GST) [1] Products listed in the table represent in excess of 97% of Telstra's Retail Customers. [2] Certain discounts apply to monthly line rental depending on the value of calls the customer makes with Telstra. [3] Other caps and options are available, but the table represents baseline pricing for these products. [4] Products listed in the table represent in excess of 97% of Telstra's Retail Customers. [5] Certain discounts apply to monthly line rental depending on the value of calls the customer makes with Telstra. [6] Other caps and options are available, but the table represents baseline pricing for these products. 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case_outcome: considered

case_text: In Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 (' Telstra No 2' ), I considered a Part A competition notice ('the Competition Notice') issued by the Australian Competition and Consumer Commission ('the Commission') pursuant to s 151AKA(2) of the Trade Practices Act 1974 (Cth) ('the Act'). Telstra challenged the issue of the Competition Notice and the written notice given by the Commission pursuant to s 151AKA(10) of the Act prior to the issue of the Competition Notice ('the Consultation Notice'). 2 In Telstra No 2 I determined that the Consultation Notice and the Competition Notice differed in the kind of anti-competitive conduct described, with those differences being ones of substance (at [263]). Due to these differences, the Consultation Notice did not comply with s 151AKA(10) of the Act and the Commission was not entitled to issue the Competition Notice (at [266]). Telstra was not given the opportunity provided by the Act to respond to a s 151AKA(10) notice and to make submissions to the Commission on the conduct the subject of the Competition Notice prior to its issue. Telstra was, therefore, denied procedural fairness and natural justice under statute and at common law (at [267]). 3 The parties subsequently made submissions on the appropriate orders to give effect to the reasons. I then indicated to the parties that I wished to hear further from them concerning the application of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') in the context of the concession made by the Commission that the decision to issue a Part A competition notice was a reviewable decision under s 5.


case_text: Section 46 of the Interpretation Act is applied as a rule of construction to permit the reading down of instruments. It is not a rule of law ( Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at [16] per Black CJ referring to Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110 per Latham CJ). The Commission has not referred to anything in the Act or in any extrinsic legislative materials to support the proposition that s 46 extends beyond such a limited application. Section 46 of the Interpretation Act concerns the construction of instruments. Both ss 46(1)(c) and 46 (2) provide for a construction to be applied. To read and construe an instrument by the application of s 46(1)(c) is not to rewrite it or to ignore its content. Section 46 has no application to a decision made under an Act. It has no application to a denial of procedural fairness. 58 Before embarking on the process of reading down, there must be some part of the impugned provision that is capable of being within power. While s 46(2) of the Interpretation Act may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power. As with s 15A, s 46 does not turn an Act or instrument which is invalid as being wholly outside legislative power into an Act which is, in part, within power ( Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 ; (1971) 124 CLR 468 at 504 per Menzies J and cited by Black CJ in Vanstone at [17]).


case_outcome: followed

case_text: Section 46 of the Interpretation Act , like s 15A, may apply where ' particular clauses, provisos and qualifications, separately expressed' are beyond power ( Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 327). It does not apply to validate a provision which extends beyond power unless the operation of the remaining parts of the instrument remain unchanged. It does not apply where the instrument was intended to operate fully and completely according to its terms or not at all ( Victoria v The Commonwealth [1995] HCA 45 ; (1995) 187 CLR 416 at 502).


case_text: In considering the Commission's appeal under s 44 of the AAT Act , it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] - [16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ).


case_text: As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373 and Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].


case_text: The threshold question posed by s 120(3) is whether the whole of the material before the decision-maker raises a reasonable hypothesis connecting the veteran's diseases with the circumstances of his service. If the material does raise such a reasonable hypothesis, the decision-maker proceeds to the question posed by s 120(1) namely, is the decision-maker satisfied beyond reasonable doubt that the facts required to connect the veteran's diseases with his service were disproved or were displaced by other facts: Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571.


case_text: Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53. 15 Thirdly, whether facts fully found fall within the provision of an Act properly construed is a question of law: Pozzolanic at 287 and Ergon Energy Corporation Ltd v Commissioner of Taxation (Cth) [2006] FCAFC 125 ; (2006) 232 ALR 652 at 663 664 (per Sundberg and Kenny JJ) and authorities cited therein.


case_text: In support of the second basis, the veteran referred to the decision of Dowsett J in Constable v Repatriation Commission [2005] FCA 928 which concerned the conditions of alcohol dependence and alcohol abuse. The veteran's reliance upon this decision was misplaced. After setting out ss 120 and 120A of the VE Act , Dowsett J went on to consider the definition of alcohol dependence and the definition of alcohol abuse in the Alcohol SoP. As his Honour noted, the Alcohol SoP defined alcohol dependence and alcohol abuse separately. However, as his Honour went on to note, paras 3, 4 and 5 of the Alcohol SoP applied to both conditions and were in the following terms: " Basis for determining the factors 3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces. Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) ... (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or ..." 26 The expression " experiencing a severe stressor " is defined in para 8 of the Alcohol SoP to mean that: "... the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person's or other people's physical integrity, which event or events might evoke intense fear, helplessness or horror. In the setting of service in the Defence Forces, or other service where the Veterans' Entitlements Act applies, events that qualify as severe stressors include: (i) threat of serious injury or death; or (ii) engagement with the enemy; or (iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence ...' 27 Not surprisingly, Dowsett J stated that " [n]othing turn[ed] upon the distinction between alcohol abuse and alcohol dependence. I will hereafter describe both conditions collectively as 'alcohol abuse'" : at [6]. Two matters may be noted. First, his Honour expressly recognised that there were two conditions. It is true that the factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service are the same. However, that second matter, the existence of the common factors necessary before it can be said that a reasonable hypothesis has been raised connecting each condition with the circumstances of a person's relevant service, does not diminish or detract from the existence of the separate conditions or from the fact that the definition of alcohol abuse in the Alcohol SoP provides that the symptoms of alcohol abuse arise only if " these symptoms have never met the criteria for alcohol dependence" . 28 The question raised by this appeal was whether it was necessary for the Tribunal to find which of the two conditions was applicable to the veteran and if so, whether the Tribunal's failure to do so was an error of law? 29 The answer to each question is yes. As was properly conceded during the course of argument by Mr Thomson, Counsel for the veteran, it was an error of law for the Tribunal to fail to make a finding as to which of the two conditions was applicable to the veteran. Accordingly, it goes without saying that I would allow the appeal and set aside the decision of the Administrative Appeals Tribunal.


case_text: Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting an injury suffered by a person, or a disease contracted by a person, with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles ("SoP") or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.


case_title: East v Repatriation Commission (1987) 16 FCR 517


case_title: Ergon Energy Corporation Ltd v Commissioner of Taxation [2006] FCAFC 125 ; (2006) 232 ALR 652

case_text: Thirdly, whether facts fully found fall within the provision of an Act properly construed is a question of law: Pozzolanic at 287 and Ergon Energy Corporation Ltd v Commissioner of Taxation (Cth) [2006] FCAFC 125 ; (2006) 232 ALR 652 at 663 664 (per Sundberg and Kenny JJ) and authorities cited therein.


case_outcome: distinguished

case_text: Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.


case_outcome: referred to

case_text: In reaching the conclusion that it did, there was no dispute that the Tribunal considered that it should follow and, in fact, did follow the Deledio methodology. As to the first two steps in the Deledio methodology, the Tribunal was satisfied that: (1) " a hypothesis connecting the injury or disease of anxiety disorder and alcohol dependence or alcohol abuse ...with service [did] exist because there [was] material pointing to it [and that] hypothesis raised emerged ... obviously and directly from the evidence... (refer Hill v Repatriation Commission [2005] FCAFC 23 at paragraph 98) "; (2) there were SoPs with respect to generalised anxiety disorder (No. 1 of 2000) ("the Anxiety SoP") and alcohol dependence and alcohol abuse (No. 76 of 1998) ("the Alcohol SoP"); (3) with respect to the Anxiety SoP, the applicable factor was " experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder" : factor 5(a)(ii). The expression " severe psychosocial stressor " was defined in para 8 of the Anxiety SoP to mean " an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems "; (4) with respect to the Alcohol SoP, the applicable factor was " experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" : factor 5(b). 19 The third step of the Deledio methodology required the Tribunal to examine if the hypothesis was reasonable. The Tribunal found that the hypotheses were reasonable on the grounds that there was material pointing to the veteran having experienced a " severe psychosocial stressor " and a " severe stressor " within two years immediately before the clinical onset of the respective disorders. 20 The fourth step of the Deledio methodology required the Tribunal to make findings of fact to determine whether it was satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. The Tribunal made the following findings of fact: (1) the veteran drank minimum quantities of alcohol on an infrequent basis both prior to enlistment and prior to commencing his service in Vietnam; (2) during his service in Vietnam, he " became apprehensive and fearful by a number of circumstances to which he had no direct involvement but by reason of his location he was concerned that they could get [him] " (original emphasis); (3) a helicopter incident in Vietnam was the most significant event to which the veteran was exposed and prior to that helicopter incident, the veteran was emotionally vulnerable. The helicopter incident was described in the following terms: "the [veteran] was a passenger ... where he heard someone say " we've been hit " and the helicopter suddenly lurched. Door gunners then opened fire from each side of the helicopter, it descended quickly, the [veteran] thought that it would crash and on landing, an inspection revealed the presence of a bullet or a bullet hole. Whilst there were slight variations in that account of the episode by the [veteran's] colleagues .., the incident itself and the circumstances immediately before landing, were corroborated. Indeed, [one colleague] said that he " feared that we would not make it " and [another colleague] said that he observed the [veteran] to be shaken. [The second colleague] said that he continues to have nightmares and dreams about that incident." (Emphasis original) (4) as a result of the helicopter incident, the veteran significantly increased his alcohol consumption " to help him cope and to help him sleep" ; (5) the helicopter incident was, within the meaning of the respective SoPs, a " severe psychosocial stressor " and a " severe stressor " and did occur within two years of the clinical onset of the respective diseases. In particular, the Tribunal was satisfied that the veteran, within two years of the helicopter incident, exhibited features or symptoms which would have caused a medical practitioner to diagnose the relevant disease or injury as then being present; and (6) the veteran's injuries of anxiety and alcohol abuse or alcohol dependence were war-caused.


case_text: In considering the Commission's appeal under s 44 of the AAT Act , it is of the first importance to restate some of the well-established principles in this field. First, this is not a reconsideration of the merits of the decision. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." See also NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367 at [14] - [16] (per Gummow J) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 (per Brennan CJ, Toohey, McHugh and Gummow JJ). 14 Secondly, the Tribunal's reasons " are not to be construed minutely and finely with an eye keenly attuned to the perception of error" : Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. They are to be read fairly as a whole and not over zealously: Wu Shan Liang at 271-272. Moreover, the reasons are not required to refer expressly to every argument and all the evidence that might be relevant to its determination of factual issues: cf Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 52-53.


case_title: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 80 ALJR 367


case_title: Repatriation Commission v Bey (1997) 79 FCR 364


case_title: Repatriation Commission v Butcher (2007) 94 ALD 364

case_text: Secondly, the observations of the Full Court in Repatriation Commission v Butcher [2007] FCAFC 36 at [19] in relation to s 44(7) of the AAT Act are apposite: "The Tribunal had fallen into legal error and, in our view, the appropriate course in this case was for the Tribunal to reconsider the evidence having regard to any further submissions or evidence which the parties wished to advance. In cases where a wrong principle has been applied by an administrative tribunal, it will generally follow that the matter should be referred back, except in cases where it would be futile to do so or where there could be no other outcome." 34 Each of those observations applies to the present case. The Tribunal had fallen into legal error. Not only did the Tribunal fail to make a finding about which of two disorders the veteran suffers but, in some paragraphs, appeared to approach the matter as if the veteran suffered from both: see, for example, [107], [109] and [111]. That is not possible. 35 Thirdly, the evidence before the Tribunal was not entirely satisfactory. Paragraph 5 of the Alcohol SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse with the circumstances of a person's service. In the present case, the factor relied upon was (para (b)) that the veteran " experience[ed] a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse" .


case_text: I accept the contentions of the Commission that in determining whether that factor existed, it was necessary for the Tribunal: (1) to distinguish between the two disorders; and (2) to have before it (and it appears that it did not) evidence from a medical practitioner determining for the purposes of the Alcohol SoP whether the disease is or was present at a particular time: Repatriation Commission v Milenz (2006) 93 ALD 107 at [34] citing Repatriation Commission v Cornelius [2002] FCA 750 at [26] . The latter requirement imposed a medical-scientific standard, not a lay standard, which in the present case required evidence from a medical practitioner identifying the date of the clinical onset of the disease the veteran had contracted within two years from October 1970 (being the date of a helicopter incident in Vietnam). Moreover, such a diagnosis would have to take into account the criteria prescribed by the Alcohol SoP for each relevant disorder alcohol dependence or alcohol abuse.


case_text: In Repatriation Commission v Codd [2007] FCA 877 at [9] - [24] I described the statutory framework in the following terms. The standard of proof to be applied in determining whether a claim for a pension in respect of the incapacity from injury or disease of a veteran was war-caused is prescribed by ss 120(1) and (3) of the VE Act . Section 120 of the VE Act relevantly provides: "(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine ... that the disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ... (3) In applying subsection (1) or (2) in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: ... (b) that the disease was a war-caused disease or a defence-caused disease; ... if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person." 12 The method by which ss 120(1) , 120 (3) and 120A (3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 ("the Deledio methodology"). The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." The Deledio methodology is subject to at least three important qualifications which are not presently directly relevant: see Repatriation Commission v Codd [2007] FCA 877 at [20] - [22] .


case_text: Section 120A(3) of the VE Act relevantly provides that a hypothesis connecting an injury suffered by a person, or a disease contracted by a person, with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles ("SoP") or a determination by the Commission that upholds the hypothesis. The second basis (a determination by the Commission) is not relevant to the circumstances of this case. That is, the hypothesis raised (that is, pointed to) by the material will only be reasonable if the hypothesis is consistent with, or fits the template of, a SoP: see Repatriation Commission v Deledio (1998) 83 FCR 82 at 96, endorsing the observations of Heerey J at first instance: Deledio v Repatriation Commission (1997) 47 ALD 261 at 275. 12 The method by which ss 120(1) , 120 (3) and 120A (3) are applied was explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 ("the Deledio methodology"). The Full Court set out the course which the Tribunal is to take in a case such as the present in the following terms: "1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." The Deledio methodology is subject to at least three important qualifications which are not presently directly relevant: see Repatriation Commission v Codd [2007] FCA 877 at [20] - [22] .


case_title: Repatriation Commission v Milenz (2006) 93 ALD 107


case_title: Repatriation Commission v Owens (1996) 70 ALJR 904


case_text: This is the first directions hearing in relation to a proceeding instituted by notice of appeal, filed on 2 December 2005. In that notice of appeal, the appellant purports to appeal from a judgment of a federal magistrate, given on 9 November 2005. The learned federal magistrate's reasons for judgment, which were given orally at the time the order was made, have been published subsequently. See MZWXD v Minister for Immigration & Anor [2005] FMCA 1972. They make it clear that the appellant's application to the Federal Magistrates Court was dismissed by reason of his failure to appear when it was called on for hearing. 2 The dismissal was pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 . It was therefore clearly a dismissal that did not constitute a final judgment. The federal magistrate's reasons for judgment make it clear that his Honour did not consider the merits of the appellant's application to that court. His Honour granted leave to join the Refugee Review Tribunal as the second respondent to the proceeding in that court, a step which is plainly necessary in light of the relief that the appellant sought. His Honour also expressly dismissed the application pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 , and ordered the appellant to pay the costs of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, which his Honour fixed at $6000. 3 Because the judgment of the court from which the purported appeal is brought is not a final judgment, it is clear that leave to appeal is required by s 24(1)(d) and s 24(1A) of the Federal Court of Australia Act 1976 (Cth). There has been no application for leave to appeal, and the time fixed by O 52 r 10(2A)(b) of the Federal Court Rules for the making of such an application has expired. 4 If the appellant were to seek leave to appeal, it would be necessary for him to apply to enlarge the time within which to make such an application. If he were to do so, it is highly likely that the response of the Court would be that he had open to him the option of returning to the Federal Magistrates Court, and applying to set aside the judgment given on 9 November 2005. If he could provide an adequate explanation of his failure to appear on that date, and could convince the Federal Magistrates Court that he had an arguable chance of success, then he would no doubt have the benefit of having that judgment set aside and being able to proceed in the Federal Magistrates Court. If he were unsuccessful, it would still be open to him to seek leave to appeal from the refusal by the Federal Magistrates Court to set aside the judgment. Such an application for leave to appeal would come to this Court and, if successful, would allow the appellant to appeal from that refusal to set aside the judgment. 5 Apart from filing his notice of appeal, and an affidavit in which he claims to be waiting for important medical documents to submit to the Federal Magistrates Court and says that he needs a chance for that court to again consider his application, the appellant has provided no material that would assist in relation to any enlargement of time or the merits of his appeal. He has failed to appear at this first directions hearing today. 6 When the case was called on and he did not appear, I stood it over and invited my associate to endeavour to make contact with the appellant by telephone. I am advised by my associate that she made such contact and was told that the appellant is unwell, has a medical certificate which he will send to the Court, and is unable to travel from Robinvale, where he currently is. 7 In the circumstances, I can see no point in adjourning the directions hearing today. To adjourn it would only be to increase the costs of the proceeding which, as I see it, the appellant will inevitably be ordered to pay. He will inevitably be ordered to pay because his appeal will have to be dismissed, unless he applies for leave to appeal, and of course unless he first applies for an enlargement of time to seek leave to appeal. As I have said, if he were to make such an application, it would very likely be unsuccessful because he would be told that he had open to him the option of returning to the Federal Magistrates Court and seeking to have the judgment of that court, given on 9 November 2005, set aside. In the circumstances, if nothing else, it would be kinder to the appellant to dismiss his purported appeal today.


case_text: Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron & Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html


case_text: In Gao v Zhang [2005] VR 380, the applicant sought leave to appeal against the decision of a judge upholding an order of a master that, inter alia , the proceeding be stayed pending payment of costs already awarded against him in the proceeding. Ormiston JA, delivering the decision of the Court of Appeal, observed that such orders were discretionary, and the applicant faced a heavy burden in showing that it was appropriate to grant leave to appeal. However, his Honour observed further that, although the Supreme Court had power to make an order for a stay, dismissal or striking out where orders for costs of interlocutory applications remained unpaid, it did not necessarily follow that whenever costs remained outstanding some such order should be made (at 383). Indeed his Honour considered that it was not appropriate that orders of this kind be adopted as a day-to-day means of recovering costs ordered by the court (at 394). His Honour continued (at 384): "The power to stay a proceeding, to dismiss a proceeding without trial, or to strike out a defence are each powers which, if exercised, in one way or another deny justice to the party affected and ought not to be employed unless it is the only fair way of protecting the interests of the party seeking such an order. The basal principle, frequently adopted, was stated by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at [720] when he said, in relation to a striking out application, ...The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped." 12 In this case, I consider that there is sufficient doubt to warrant reconsideration of his Honour's decision. I take this view because: • although his Honour quite properly made detailed reference to Gao v Zhang [2005] VR 380 in his judgment, and clearly sought to achieve fairness between the parties with respect to his orders, the facts in the present proceedings bear few similarities to those in Gao v Zhang [2005] VR 380 where the Court considered that the conduct of the applicant justified the relevant order. There does not appear to be an element of harassment of the respondents in these proceedings or deliberate conduct by the applicant which warrants condemnation as was found to be the case in Gao v Zhang [2005] VR 380 • notwithstanding the apparent financial difficulties of the applicant, there is evidence before the Court (including this application before me) which indicates a willingness to prosecute the matter • while it appears that the applicant in this case has financial difficulties, and has had difficulty raising funds to pay the outstanding costs, the paramount principle as made plain by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 is that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed • as pointed out by Ormiston JA in Gao v Zhang [2005] VR 380, costs awards at interlocutory stages in proceedings are common without the continuation of the matter necessarily depending on the payment of those costs prior to trial.


case_title: Davidson v Fesl [2005] FCAFC 183

case_text: Previous decisions of this Court indicate that issues that are relevant as to whether a decision is attended by sufficient doubt to warrant reconsideration include the following: - a decision may be of "sufficient doubt" where a contrary position is reasonably arguable (Tamberlin J in Johnston v Cameron [2002] FCAFC 251 at [65] ) or the view taken by the trial judge is debatable ( Davidson v Fesl [2005] FCAFC 183 at [22] ) - leave to appeal is not necessarily granted simply because the reviewing court does not agree with every aspect of the trial judge's reasons ( Energex Limited v Alstom Australia Limited [2005] FCAFC 215 at [65] ) and - leave is more readily granted where substantive issues, rather than points of practice, are at issue ( Rivera v United States of America [2004] FCAFC 154 at [13] , M111 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97 at [8] ).


case_text: In the case before me there is no dispute that the decision of his Honour is an interlocutory decision, and that leave to appeal is required pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules . The principles to be applied by the Court when considering whether leave to appeal should be granted in such circumstances are well settled, and can be summarised as: • whether the judgment was attended by sufficient doubt to warrant it being reconsidered, and • whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( Décor Corporation v Dart Industries Inc (1991) 33 FCR 397, Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539) 15 In these proceedings there is no dispute that the orders of his Honour were interlocutory orders, do not finally dispose of the rights of the parties, and require leave of the Court within terms of s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules for an appeal to lie. I do not read Southern Cross Exploration NL as suggesting that there is no possibility of injustice to one party arising within the meaning of the principles articulated in Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 and Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539, simply because the orders do not finally dispose of the rights of the parties in the action. However in any event, although the orders as made require the applicant to pay an amount of costs to the respondents by 29 February 2008, and it is only if the applicant fails to comply with that order that any further consequence will flow, the reality is that the orders of his Honour have a finalising effect on the substantive proceedings. If his Honour's decision is wrong, substantial injustice to the applicant will follow, because the applicant will have lost his right to a hearing.


case_title: Energex Limited v Alstom Australia Limited [2005] FCAFC 215


case_outcome: discussed

case_title: Gao v Zhang [2005] VR 380

case_text: The applicant's submissions can be summarised as follows: • the nett effect of the respondents' conduct was that prior to his agreement with them the applicant had a business which paid him a decent income doing something he enjoyed and was good at doing; whereas after his involvement with them he had no business, no job, no shares, and no ability to restart his previous business • the proceeding had been on foot for approximately two and three-quarter years when the order of his Honour was made, which was not a sufficient period to indicate a delay so great that the matter should not be allowed to proceed • the applicant's failure to pay costs the subject of the order was due to his impecuniosity, which had been brought about by the conduct of the respondents • the proceedings were well advanced • difficulties with the applicant's pleading had been cured by the filing and serving of the second amended statement of claim • there was no indication that, if the proceeding were allowed to continue, the applicant would not be able to prosecute it diligently • this was not a case where the history of the matter could be attributed to poor conduct on the part of the applicant, and which fell for condemnation to the extent of making an order that a matter be stayed unless costs were paid: Gao v Zhang [2005] VR 380 • supposing the decision to be wrong, substantial injustice would flow if it were allowed to stand, in that the claim against the respondents would be at an end, and if the applicant's claim were true the respondents would have executed and benefited from a most egregious fraud. 6 The respondents' submissions can be summarised as follows: • the orders made by his Honour on 14 December 2007 were entirely reasonable in the circumstances and no error in his Honour's approach or reasons had been demonstrated • it was open to his Honour to have dismissed the proceedings on 14 December 2007 because of the applicant's failure to prosecute. Prior to that date no explanation had been offered by the applicant for his failure to pay any part of the costs ordered against him on 22 December 2006. Inferences could be drawn from this failure about the applicant's ability and willingness to continue to prosecute the matter • by allowing the applicant until 29 February 2008 to pay costs (which were ordered against him on 22 December 2006) his Honour granted a final indulgence to the applicant rather than dismiss the proceeding on 14 December 2007 • no cogent reason had been advanced why the applicant would be able to obtain funding of $20,000 and not the full amounts of costs payable • no evidence had been provided in relation to whether there has been any attempt to raise or obtain funding for the full $68,609.41 assessed at taxation • the orders made on 14 December 2007 would not result in "substantial injustice" because the orders did not finally dispose of the matter. The orders merely required the applicant to pay an amount of costs to the respondent, which costs were ordered to be paid on 22 December 2006, by 29 February 2008 • even if the practical effect of the orders were to end the proceedings that would not of itself amount to substantial injustice in circumstances where his Honour could reasonably have dismissed the proceedings on 14 December 2007. 9 In her submissions Ms Heyworth-Smith for the applicant relied on the decision of the Victorian Court of Appeal in Gao v Zhang [2005] VR 380, a decision to which his Honour also referred in his judgment. That case concerned an interpretation of r 63.03(3) Supreme Court Rules (Vic) which provided inter alia that, where the court had made an interlocutory order for costs and the subject party failed to pay them, the court had power to stay or dismiss the proceeding or, where the party was the defendant, to strike out the defence. 10 In Gao v Zhang [2005] VR 380, the applicant sought leave to appeal against the decision of a judge upholding an order of a master that, inter alia , the proceeding be stayed pending payment of costs already awarded against him in the proceeding. Ormiston JA, delivering the decision of the Court of Appeal, observed that such orders were discretionary, and the applicant faced a heavy burden in showing that it was appropriate to grant leave to appeal. However, his Honour observed further that, although the Supreme Court had power to make an order for a stay, dismissal or striking out where orders for costs of interlocutory applications remained unpaid, it did not necessarily follow that whenever costs remained outstanding some such order should be made (at 383). Indeed his Honour considered that it was not appropriate that orders of this kind be adopted as a day-to-day means of recovering costs ordered by the court (at 394). His Honour continued (at 384): "The power to stay a proceeding, to dismiss a proceeding without trial, or to strike out a defence are each powers which, if exercised, in one way or another deny justice to the party affected and ought not to be employed unless it is the only fair way of protecting the interests of the party seeking such an order. The basal principle, frequently adopted, was stated by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at [720] when he said, in relation to a striking out application, ...The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped." 12 In this case, I consider that there is sufficient doubt to warrant reconsideration of his Honour's decision. I take this view because: • although his Honour quite properly made detailed reference to Gao v Zhang [2005] VR 380 in his judgment, and clearly sought to achieve fairness between the parties with respect to his orders, the facts in the present proceedings bear few similarities to those in Gao v Zhang [2005] VR 380 where the Court considered that the conduct of the applicant justified the relevant order. There does not appear to be an element of harassment of the respondents in these proceedings or deliberate conduct by the applicant which warrants condemnation as was found to be the case in Gao v Zhang [2005] VR 380 • notwithstanding the apparent financial difficulties of the applicant, there is evidence before the Court (including this application before me) which indicates a willingness to prosecute the matter • while it appears that the applicant in this case has financial difficulties, and has had difficulty raising funds to pay the outstanding costs, the paramount principle as made plain by Dixon J in Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 is that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed • as pointed out by Ormiston JA in Gao v Zhang [2005] VR 380, costs awards at interlocutory stages in proceedings are common without the continuation of the matter necessarily depending on the payment of those costs prior to trial. 13 Second, in my view the applicant would suffer substantial injustice if leave to appeal were refused, supposing his Honour's decision to be wrong. As pointed out by Ormiston JA in Gao v Zhang [2005] VR 380, impecuniosity is not irrelevant so far as the exercise of this kind of drastic power is concerned, and there is some evidence before the Court that the applicant is in significant financial straits. Although his Honour's orders were limited to payment of costs, it is clear that a failure of the applicant to pay the outstanding costs would constitute the death knell to the substantive proceedings in this case. As I have observed, historically the conduct of the applicant in this case is not in the nature of harassment as was the case in Gao v Zhang [2005] VR 380, and it is debatable whether it was so reprehensible as to warrant dismissal in lieu of payment of outstanding costs.


case_title: Johnston v Cameron [2002] FCAFC 251


case_title: M111 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 97


case_title: Rivera v United States of America [2004] FCAFC 154


case_title: Shaw v Holland (1900) 2 Ch 305


case_text: Mr Steele for the respondents submitted that his Honour's orders would not result in substantial injustice because the orders did not finally dispose of the matter, and relied on Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200. I am not persuaded that this is sufficient reason for finding that substantial injustice would not occur if leave to appeal were refused. Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 is authority for the propositions that, inter alia : • an appeal from interlocutory orders of a judge, filed without leave, should be dismissed as incompetent, • whether an order is characterised as "final" or "interlocutory" depends on the legal, not the practical, effect of the order, and • a declaration that an action be dismissed with costs by operation of a self-executing order does not finally dispose of the rights of the parties in the action, and is interlocutory rather than final. 15 In these proceedings there is no dispute that the orders of his Honour were interlocutory orders, do not finally dispose of the rights of the parties, and require leave of the Court within terms of s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules for an appeal to lie. I do not read Southern Cross Exploration NL as suggesting that there is no possibility of injustice to one party arising within the meaning of the principles articulated in Décor Corporation v Dart Industries Inc (1991) 33 FCR 397 and Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539, simply because the orders do not finally dispose of the rights of the parties in the action. However in any event, although the orders as made require the applicant to pay an amount of costs to the respondents by 29 February 2008, and it is only if the applicant fails to comply with that order that any further consequence will flow, the reality is that the orders of his Honour have a finalising effect on the substantive proceedings. If his Honour's decision is wrong, substantial injustice to the applicant will follow, because the applicant will have lost his right to a hearing.


case_title: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539


case_title: The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384


case_outcome: related

case_title: Welsh v Digilin Pty Ltd [2007] FCA 2064

case_text: This is an application for leave to appeal from the judgment of Dowsett J of 14 December 2007 ( Welsh v Digilin Pty Ltd [2007] FCA 2064) pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth) and O 52 r 10 Federal Court Rules , and for an order that the judgment of his Honour be stayed pursuant to O 52 r 17 Federal Court Rules . The application has been brought by the applicant to the substantive proceedings, Mr Welsh. 2 Facts relevant to this matter appear from the background summary in the decision of his Honour and include the following: • the substantive application in these proceedings was filed in 2005, although the relevant circumstances date from the mid 1990s • the matter was set down for trial before his Honour in April 2006 however at that time the applicant indicated that he proposed to raise new issues in the proceedings. Accordingly the trial dates were vacated • the matter was subsequently listed for trial before his Honour in October 2006, however it subsequently emerged that another amendment to the statement of claim would be required. Accordingly the trial dates were again vacated • on 22 December 2006 his Honour ordered the applicant to pay costs of the respondents, including, inter alia , costs thrown away by reason of the vacation of the trial dates. His Honour also ordered that, in view of the history of the matter, the proceedings be stayed pending payment by the applicant of $20,000 on account of costs, and that the respondents be at liberty to apply for additional stays as the costs orders became quantified by assessment or taxation. As his Honour subsequently explained: "This may have been an inelegant way of saying that the respondents could apply to increase the amount to be paid as the costs were assessed or taxed. The bills have now been assessed. The total is, as I understand it, $68,609.41, including the costs of the figure. I do not understand there to be any challenge to that figure." ( Welsh [2007] FCA 2064 at [4] ) • the matter was again listed for trial in December 2007, in the expectation that the applicant would have complied with the costs order • no amount of costs was paid by the applicant to the respondents. Accordingly, the respondents moved to strike out the application for want of prosecution. That application was the subject of his Honour's judgment of 14 December 2007 • the applicant's solicitor, Mr Boaz Ben Yani, filed an affidavit on 13 December 2007 asserting in summary that: o the applicant had suffered financial hardship; o apart from his claim, the applicant's only asset was a car worth approximately $4,000; o the applicant's net income was approximately $728 per week; o the applicant intended to lodge a claim against his previous counsel for professional negligence; and o the applicant had approached a litigation funder to assist him in payment of $20,000 towards the respondents' costs, which sum the applicant believed he would be able to obtain by the end of February 2008. His Honour observed however that, in the absence of any evidence as to the nature of the cause of action against his previous counsel the proposed claim against counsel was of little relevance. Further, his Honour noted that it appeared that the claim against counsel and the approach to the litigation funder had occurred recently, and one might have expected to see more detail concerning the applicant's efforts if the applicant were genuinely trying to advance the matter (at [6]). 3 In light of these facts his Honour was of the view that the applicant should not be allowed to continue to prosecute the proceedings against the respondents until such time as he met the orders for costs made as a result of his conduct in connection with the scheduled hearings in April and October 2006 (at [6]). In reaching this view, his Honour took into consideration: • the fact that it will, as a general proposition, be inappropriate to prevent a party from litigating a claim to resolution simply because he or she is impecunious, and • notwithstanding this principle, fairness between the parties must be the primary consideration and the conduct of a party may lead to an order which effectively prevents his or her continuation of the proceedings. 4 Significantly his Honour continued: [10] "In this case the applicant seems to have encountered serious difficulty in formulating his claim. He has, to some extent and in very general terms, sought to blame his previous counsel for that. I am not willing to act on the basis that such difficulty was necessarily attributable to counsel. That is one possibility, but not the only one. That the applicant has experienced difficulty in formulating his claim does not encourage confidence in its merits. On the other hand it does not exclude the possibility that it is a meritorious claim. The difficulties which he has experienced have caused the respondents to incur considerable costs which ought not to have been incurred, and which they ought not to have to pay. They have, however, paid, or are liable to pay, a considerable amount of money, no doubt at least $68,000, and probably significantly more. They, or their lawyers, are out of pocket to that extent. That may not be a compelling consideration in cases where there is reason to hope that the proceedings will be quickly resolved. The history of this matter offers no cause for such optimism, even if the stay is lifted. The applicant's failure to pay the specified sum, and so lift the stay, has resulted in this matter not having progressed since December 2006, further demonstrating that the case is unlikely to be resolved quickly. This is all the more reason, in my view, for steps being taken to ensure, as far as possible, that the respondents are not out of pocket. [11] Although there is considerable merit in the respondents' application, I am minded to give the applicant one further chance to regularise the proceedings. I order that para 21 of the order made on 22 December 2006 be amended by deleting the amount of $20,000 and inserting, in lieu thereof, the amount of $68,609.41. I further order that unless, on or before 29 February 2008, the applicant pays to the respondents the sum of $68,609.41, these proceedings are to stand dismissed. The applicant is to pay the respondents' costs of the motion and the hearing today." 16 Although as a general rule proceedings under a judgment should not be stayed pending an appeal ( Shaw v Holland (1900) 2 Ch 305), it is equally clear that the Court ought to see that the appeal, if successful, is not nugatory ( Wilson v Church (No 2) (1879) 12 Ch D 454). In considering whether to grant a stay, it is also important that the Court take account of the risk of prejudice resulting from a stay to the other party ( The Marconi's Wireless Telegraph Company Ltd v The Commonwealth (No 3) [1913] HCA 23 ; (1913) 16 CLR 384, ACCC v BMW (Australia) Ltd (No 2) [2003] FCA 864). In this case in the absence of a stay, an appeal from his Honour's judgment would be nugatory. Further, there is no evidence before me that a stay of his Honour's orders would prejudice the respondents. THE COURT ORDERS THAT: 1. Leave to appeal against the judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be granted pursuant to section 24(1A) Federal Court of Australia Act 1976 (Cth) and Order 52 rule 10 Federal Court Rules . 2. The judgment of his Honour in Welsh v Digilin Pty Ltd [2007] FCA 2064 be stayed pursuant to Order 52 rule 17 Federal Court Rules . 3. Costs be reserved. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 February 2008 Counsel for the Applicant: C Heyworth-Smith Solicitor for the Applicant: Efron & Associates Counsel for the Respondent: M Steele Solicitor for the Respondent: ClarkeKann Date of Hearing: 7 February 2008 Date of Judgment: 18 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/78.html


case_title: Wilson v Church (No 2) (1879) 12 Ch D 454


case_text: In The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, the joint judgment of Dawson, Gaudron and McHugh JJ cited with approval (at 152-153) a passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at 710, as follows: 'Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.' 14 The joint judgment in J L Holdings emphasised (at 154) that the ultimate aim of a court is the attainment of justice and that no principle of case management can supplant that aim. The latter comment reflected the fact that in J L Holdings itself, the application for leave to amend pleadings had been refused by the trial Judge some six months before the hearing was due to commence. The application to amend in the present case has been made towards the end of the hearing in an extraordinarily long and complex case. 15 If leave could be granted to Seven to amend para 222 without causing significant prejudice to Optus and the other respondents, I would grant the necessary leave, even at this late stage of the proceedings. I would do so notwithstanding the absence of an explanation on affidavit as to the reason for Seven's failure until now to plead the retail minus formula. The critical question, therefore, is whether the amendment, if made, will occasion significant prejudice to the respondents in the conduct of the trial. 16 Mr Sheahan submitted that the amendment would cause no significant prejudice to the respondents because they have in fact addressed the question of whether Optus was an effective competitor on price and quality, both in relation to the period before and the period after the CSA. According to Mr Sheahan, there is no further factual inquiry that the respondents could make that has not already arisen on the pleadings. He pointed out, for example, that Optus' expert, Professor Hausman, adverted in his report to the fact that Foxtel and Optus now offer 'essentially the same product for which Optus pays a licence fee determined by reference to Foxtel's retail price'. Mr Sheahan also directed attention to the fact that one of Seven's competition experts, Professor Noll, referred in his report to the retail minus formula as eliminating the possibility of price competition between Foxtel and Optus where their services overlap.


case_title: Cropper v Smith (1884) 26 Ch D 700

case_text: In The State of Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146, the joint judgment of Dawson, Gaudron and McHugh JJ cited with approval (at 152-153) a passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, at 710, as follows: 'Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.'


case_text: Having regard to the history of this matter, I am not persuaded that I should adjourn this proceeding. The medical certificate tells the Court nothing about the seriousness of the condition, and whether it is really likely to prevent the appellant from going to Court. There may be conditions that preclude someone attending work, but do not preclude the person attending Court. I regard the certificate as worthless. See generally MZWIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 185 per Sundberg J.


case_outcome: applied

case_text: The objection to competency is plainly well taken. A decision to dismiss an application by reason of the absence of the applicant is a decision of an interlocutory nature. Pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) an appeal from the Federal Magistrates Court cannot be brought from such a decision without leave. See generally NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659 at [15] per Hely J; MZWQH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1491 at [26] per Kenny J; and MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172 at [9] per Young J.


case_title: MZWXC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 172


case_title: NACA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 659


case_text: Thirdly, the appellant complained that the Tribunal found that he could seek the protection of relevant authorities and the legal system in India. It is true that the Tribunal so found. It is impossible to characterise that conclusion by the Tribunal as an infringement of the requirements of s 430. Fourthly, he complained that the Tribunal failed to record the material facts for the reasons referred to above. It seems to me, in light of what I have just said, that that allegation is without substance. In any event, the argument could not be accepted in light of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2000) 206 CLR 323 at 331-332 [10] per Gleeson CJ, 349 [77] per McHugh, Gummow and Hayne JJ. 22 Ground five complained that the Tribunal had, by reason of the first three grounds, failed to carry out its review function. It is, of course, true that had the Tribunal failed to carry out its review function that it would have engaged in a jurisdictional excess. However, in the circumstances where I have found each of the other grounds not to have been made out it follows that this ground is not made out either. I should say for completeness that two particulars were provided for ground five. The first was that the Tribunal did not consider that the appellant had been under immense intimidating pressure from the RSS. It seems to me that that is not factually correct. The Tribunal recorded its findings about that. Secondly, it was said that the Tribunal did not consider the appellant's claim that RSS members would kill him if he returned to India. This is factually incorrect. The Tribunal did record that claim and, it seems to me, accepted it as well. 23 The appellant also filed written submissions in which he sought to impugn the Tribunal's conclusion that the confrontations after December 1998 had occurred because of the settlement. I have already rejected that argument. It was then argued that the Court below ought to have held that on the evidence it was open to the Tribunal to find that the appellant was a refugee. There was no occasion for the learned federal magistrate to reach such a conclusion. Her inquiry was limited to the identification of jurisdictional error.


case_text: Secondly, the appellant argued that the Tribunal had failed to make further inquiries in India. Had it done so, the appellant argued that it would have discovered his status in Kerala and it would have more clearly understood the political circumstances surrounding his membership of the Communist Party of India (Marxist) and the RSS party. Sections 424 and 427 (1)(d) of the Act both permit the Tribunal in its discretion to make further inquiries. However, it has been held that those provisions do not impose, generally speaking, any duty upon the Tribunal to make such inquiries. It may be that the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 provides the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries. It is doubtful however whether the principle in Prasad has survived the enactment of s 422B of the Act . 12 At the time of the Tribunal's decision, s 422B provided: Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416 , 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. 13 That provision is likely to have removed the operation of the Prasad doctrine. In any event, I do not think that the Prasad doctrine would have any applicability to the present facts. There were no circumstances calling for such an inquiry. Accordingly, I reject the argument that the Tribunal committed jurisdictional error by failing to make further inquiries in India. 14 Thirdly, the appellant argued that if he were now to be returned to India he might be killed. It seems to me that the Tribunal accepted the correctness of that proposition. In that circumstance, it is difficult to discern how there can be a jurisdictional error involved in the Tribunal's treatment of the matter. 15 Fourthly, the appellant argued that the facts which occurred before 1998 were not related to the settlement but occurred for Convention reasons. The Tribunal dealt with that matter by finding that the provisions in s 91R applied to them; in other words, it found that they were insufficiently important to amount to persecution in the relevant sense.


case_text: is an application for leave to appeal from a decision of a single judge of this Court made on 11 September 2009 ( Apotex Pty Ltd v Les Laboratoires Servier (No 2) [2009] FCA 1019). The effect of that decision was to dismiss a Notice of Motion filed by the respondent below ( Servier ), in which Servier sought to amend Australian Patent No 2001276418 ( the AC patent ). In the proceedings below, the applicant there ( Apotex ) had applied for a declaration that the AC patent was invalid. Servier had then sued Apotex and others for infringement of the AC patent. The judgment in respect of which leave to appeal is sought finally determines the form of the claims of the AC patent, as between the parties to the proceedings and all other persons. It does, in that sense, affect the substantive rights of the respondent. If the present application for leave is refused, then the proceedings below will proceed to a hearing on validity and infringement, based on a set of claims which do not take into account the claims the subject of the amendment application. The parties have agreed that the appropriate course is for the application for leave to appeal and the appeal itself, should leave to appeal be granted, be listed for hearing together and as soon as possible. The reasons for this are obvious. Such an approach will save the parties both time and money. It will also minimise the risk that the Court will be required to rehear the validity and infringement claims should the appeal be successful.


case_title: Bell v Queensland (2006) 71 IPR 139

case_text: I am entitled to have regard to that course of conduct. Indeed, s 4K(3) and (4) of the Crimes Act 1914 apply where a person has been charged with a number of offences against the same provision of a law of the Commonwealth. The Court is authorised to impose one penalty in respect of all of the offences, but that penalty is not to exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence. In Bell v Queensland (2006) 71 IPR 139 at 140-141 [6]-[9] Kiefel J considered it appropriate to impose one penalty in respect of a series of offences similar to Mr Vu's; see also Hamm v Middleton (1999) 44 IPR 656 at 659 [15] per von Doussa J. 44 I am satisfied that Mr Vu has shown genuine contrition for his offending. Not only did that appear clearly from the report of the Probation and Parole Service, but in his evidence before me I consider him to have been genuinely remorseful and to have recognised that he has exposed himself to pay whatever penalty the court might extract from him as a result of his foolishness and dishonesty. 45 Mr Vu pleaded guilty at the first available opportunity. The police argues that his guilty plea must be seen in the context of an acknowledgment of the strength of the police case and a recognition of the inevitable.