case_text: To fall within s 100(3)(c) it is not sufficient for the owner of a trade mark to point to circumstances peculiar to himself. There must be some circumstance which in a practical business sense caused the non-use of the mark: Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 , 107 FCR 166. Drummond J there summarised the approach to be adopted as follows: [46] It can be accepted that the wording of s 100(3)(c) was deliberately adopted to give the subsection a wider operation than the narrowly worded provision contained in s 23(4) of the 1955 Act. It is now not necessary to show unusual or abnormal, as opposed to normal or usual, trading conditions (a difficult concept to comprehend and apply) before s 100(3)(c) can operate. Ordinary incidents of the trade cycle commonly encountered by traders, as well as abnormal ones, are now within the provision. Further, it is clear that a circumstance of a trading nature that has an impact only on the registered owner can also now be relied on to justify non-use of the mark. [47] In the context of s 100(3)(c), there are, however, good grounds for reading "circumstances" as not embracing any event of any kind. The circumstances must be "an obstacle to the use of the trade mark by the registered owner". This suggests that they must arise from or comprise events external to the registered owner in the sense of not having been brought about by the voluntary act of the owner. [48] But if any circumstance external to the owner, in the sense of being a circumstance not brought about by the voluntary act of the owner, is within the provision, the Court would be drawn into inquiries of a kind that it is difficult to accept were in the contemplation of the Parliament. Financial impecuniosity could excuse non-use of a trade mark, irrespective of how enduring and intractable the owner's impecuniosity might be. Illness of the registered owner could also excuse non-use of the registered trade mark (as is the contention of the applicants here). A falling out between joint registered owners of a mark that disrupts the use by either of the mark might also be capable of excusing non-use. In all such situations, questions could arise requiring investigation by the Court into whether the obstructing circumstances were due to the conduct of the registered owner. [49] If the Parliament intended any circumstance external to the owner to be capable of providing an excuse for non-use, little purpose would be served by the words in parenthesis in s 100(3)(c), namely, "whether affecting traders generally or only the registered owner of the trade mark". The presence of these words is some indication that the circumstances comprising an obstacle to use of the mark must not only arise externally to the registered owner, but must also be circumstances of a trading nature. His Honour considered that s 100(3)(c) was " sufficiently obscure " to occasion recourse to extrinsic material, including the Second Reading Speech . His Honour continued: [54] It is apparent from these extrinsic materials that s 100(3)(c) was not intended by the Parliament to provide a defence to an attack on a registered trade mark for non-use on any grounds, including grounds entirely personal to the trade mark owner that do not bear any trading character, so long only as they do not arise from the voluntary actions of the owner. [55] In my opinion, circumstances within s 100(3)(c) will only exist when events arise that are capable of disrupting trade in the area of commercial activity in which goods bearing the registered owner's mark are traded. For the statutory excuse to be made out, those circumstances must cause (in a practical business sense) non-use of the particular mark by the owner, whether or not they have an impact on any persons other than the owner of that mark who are also involved in that same area of commercial activity. There must be a causal link shown between the relevant circumstances and the mark's non-use. This requirement arises from the fact that s 100(3)(c) creates an excuse only where the mark has not been used by the registered owner "because of" circumstances etc. It will not assist the opponent to removal to show the existence of an impediment to use of the kind referred to in s 100(3)(c) if he does not also establish that, but for that impediment, he would have used the mark. Compare Re James Crean & Son Ltd's Trade Mark [(1921) 38 RPC 155] at 162. [56] Circumstances that do not have a trade character but which only affect a mark owner in his personal character, such as illness afflicting the owner of the mark that is sufficiently disabling to prevent the owner using the mark, can never therefore found an answer within s 100(3)(c) to an application for removal of the mark for non-use. 167 In the present proceedings there were undoubtedly discussions between Gallo Winery and McWilliams Wines as to the launch in Australia of BAREFOOT wine. But by May 2007 the negotiations had not proceeded beyond just that, negotiations. Compare: Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at [40] , [2001] FCA 261 ; 107 FCR 166 at 179. There was unquestionably an intention to launch BAREFOOT wine in Australia " in around September 2007 ". But, and unlike the position in Buying Systems , there had been no step taken during the non-use period comparable to the placing of advertisements or the printing of letterheads or business cards. The only step which had been taken was the unilateral step taken by McWilliams Wines to allocate some of its wine. Gallo Winery was pleased that such a step had been taken as it preserved the possibility of a launch in September 2007. That was a step taken, however, by McWilliams Wines and not by Gallo Winery. 168 Gallo Winery , it is considered, had only engaged in preliminary or preparatory acts: Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at [28] , [2001] FCA 261 ; 107 FCR 166 at 175 per Drummond J. See also: Burrell R, The Requirement of Trade Mark Use: Recent Developments in Australia (2005) 16 AIPJ 231 at 238. 189 A single use during the non-use period, it should be accepted, is sufficient: Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at [14] [17], [2001] FCA 261 ; 107 FCR 166 at 171 2 per Drummond J. 190 And " good faith " means a real as opposed to a token use in a commercial sense. It requires a " substantial and genuine " use: NSW Dairy Corporation v Murray Goulburn Co-operative Co Ltd (No 1) (1989) 14 IPR 26 at 45. Gummow J concluded: In these circumstances, it is clear that in the three year period ending 6 June 1988 (being the period specified in s 23(1)(b)) the moo mark had been used by the registered proprietor not only in relation to cheese, but also in relation to flavoured milk in the sense required to preserve the registration, subject only to the further requirement that the use answered the description of having been bona fide. In "Concord" Trade Mark [1987] FSR 209 ; Falconer J held that to be bona fide within the meaning of the equivalent provision in the British legislation (s 26 of the 1938 Act) use should be substantial and genuine judged by ordinary commercial standards considered in relation to the trade concerned. ... I should add that use by the first respondent would not cease to be bona fide even if the evidence had been that it used the trade mark only after it appreciated that the registration was vulnerable to an attack on the ground of non-use by reason of the lack of activity of the second respondent; nor would it cease to be bona fide, even though, as is the case on the evidence, neither the officers of the first respondent nor its patent attorney, who dealt with the second respondent at the time the assignment was taken in 1987, had enquired closely of the second respondent as to the extent of its previous user of the trade mark... Aff'd: NSW Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] HCA 60 ; (1990) 171 CLR 363. This approach was endorsed by Drummond J in Woolly Bull Enterprises Pty Ltd v Reynolds [2001] FCA 261 at [16] , [2001] FCA 261 ; 107 FCR 166 at 171.


case_outcome: followed

case_text: In support of the submission that reliance may be placed upon not only the sign being used by Lion Nathan but also upon a wider ranger of considerations, including the manner in which that sign is being used and the differences between the competing products, reference was made to Woolworths Ltd v Registrar of Trade Marks (1998) 42 IPR 615. In allowing an appeal from a decision refusing to register a trade mark, Wilcox J concluded (at 624): The questions whether one mark is deceptively similar to another and whether the first mark is used in respect of services closely related to particular goods (or similar to other particular services) are conceptually distinct. However, the first question cannot be addressed in isolation from the second. The closer the relationship between the services and particular goods, the more likely any similarity in marks will prove deceptive. The examples offered by Lockhart J in Caterpillar Loader Hire make the point. There are extremely close associations between the sale of data processing equipment and the provision of programs for its operation, the sale and sewing of curtains and the sale and tailoring of clothes. Because the relevant service is so specialised, and focused on the particular goods, it would be natural for any member of the public to treat a similarity of name as being an indication of a link between the origin of the goods and that of the service. At the other extreme, the use of even the same name, by traders in different industries, would not usually cause members of the public to assume a link between the traders. On appeal, the decision of Wilcox J was upheld: Registrar of Trade Marks v Woolworths Ltd [1999] FCA 1020 , 93 FCR 365.


case_title: Yau's Entertainment Pty Ltd v Asia Television Ltd [2002] FCA 338 , 54 IPR 1

case_text: Section 92(1) and (4)(b) of the 1995 Act provide as follows: Application for removal of trade mark from Register etc. (1) Subject to subsection (3), a person may apply to the Registrar to have a trade mark that is or may be registered removed from the Register. ... (4) An application under subsection (1) or (3) (non-use application) may be made on either or both of the following grounds, and on no other grounds: ... (b) that the trade mark has remained registered for a continuous period of 3 years ending one month before the day on which the non use application is filed, and, at no time during that period, the person who was then the registered owner: (i) used the trade mark in Australia; or (ii) used the trade mark in good faith in Australia; in relation to the goods and/or services to which the application relates. Section 7 further defines that which constitutes the " use " of a trade mark. An " authorised use " of a trade mark is taken to be a use of the trade mark by the owner: s 7(3). Section 8 defines that which constitutes an " authorised use ". See: Yau's Entertainment Pty Ltd v Asia Television Ltd [2002] FCA 338 at [75] [81], [2002] FCAFC 78 ; 54 IPR 1 at 16 per Hely J (Sundberg and Finkelstein JJ agreeing). The term " during " does not mean " throughout " so as to require a regular and continuous course of conduct for the whole period: NSW Dairy Corporation v Murray Goulburn Co-operative Co Ltd (No 1) (1989) 14 IPR 26 at 44 per Gummow J. See: Luck J, Case Note (1990) 1 IPJ 63.


case_outcome: considered

case_title: Australian Communications and Media Authority v Mobilegate Ltd A Incorporated in Hong Kong (No 4) [2009] FCA 1225

case_text: general nature of the conduct which is alleged by the Australian Communications and Media Authority (Authority) to constitute contraventions of the Spam Act 2003 (Cth) (Spam Act), together with pertinent principles in relation to the imposition of penalty are canvassed at some length in reasons for judgment which I delivered on 23 October 2009 in Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 4) [2009] FCA 1225 (ACMA v Mobilegate (No 4)). These reasons for the judgment should also then, in respect of those two subjects, be read in conjunction with that earlier (ACMA v Mobilegate (No 4)) judgment in this matter. Some repetition is necessary as to the general background, if only to provide a context against which the particular involvement of Jobspy and Mr Moles falls for assessment of penalty. The essence of the contraventions of s 16 of the Spam Act , which are established by the default judgment, is a contravention, and a repeated contravention, by the sending of unsolicited short message service (SMS) messages to the mobile telephones of users who have been deceived, inveigled even, into providing their mobile telephone numbers to representatives of either Mobilegate Ltd A Company Incorporated in Hong Kong (Mobilegate), or, as the case may be, Winning Bid Pty Ltd (Winning Bid), under the belief that they were corresponding with individuals seeking to meet them and form relationships via dating websites. It was the very essence of the businesses of Mobilegate and Winning Bid to engage in this conduct. That conduct is a form of seduction for reward of those who are vulnerable. It is a particularly vile form of conduct. Moreover, it is a form of conduct which, when the deception is appreciated by its victim, wounds in a peculiarly embarrassing and emotional way, quite aside from its financial impact. Those non-financial aspects of victim impact are such that the perpetrator of the contravention is to some extent rendered immune, or at least afforded a degree of immunity, from a likelihood of complaint, in my opinion. That is a feature, in my opinion, which is not unknown in respect of criminal activity, and I interpolate at once this is not criminal activity, but contraventions of civil penalties, which touches upon a person's sexual nature. In other words, an embarrassment attends the victim of the contravention and that embarrassment in turn provides the degree of immunity from complaint. I regard that as an aggravating aspect of the contravening conduct.


case_text: factor which I took into account in the ACMA v Mobilegate (No 4) judgment is that articulated by Nicholson J in Australian Communications and Media Authority v Clarity 1 Pty Ltd [2006] FCA 1399 ; (2006) 155 FCR 377 (Clarity1) at para 43. By reference to other authorities, his Honour observed that, while he accepted that the issue of capacity to pay is a relevant factor, it is one "of less importance when balanced against the necessity of imposing a penalty that satisfies the objective of general deterrence". Deterrence is a factor of particular importance in this case. I have already adverted to the need for penalties to demonstrate that both in the specific and general senses. Whilst the Act does provide for large penalties, it nonetheless makes provision for a daily maximum, something of a cap in other words. Nicholson J drew attention to this feature of the legislation in Clarity 1 by reference to the explanatory memorandum to the bill which became the Spam Act . It is there stated: A daily ceiling for penalties has been set and may be charged for all contraventions against a particular provision that have occurred in one day. This has been included to ensure that a meaningful penalty may be charged for a single contravention without causing an unrealistically large penalty payable for multiple contraventions. For example, there are reported cases of dedicated spammers sending millions of unsolicited commercial and electronic messages each day. Without a ceiling amount for daily contraventions such a spammer could potentially be liable for a million contraventions. Jobspy and its director, Mr Moles, were involved in contravening conduct the subject of default judgment for a period in excess of 800 days. Using the maximum penalties under the Spam Act as a guide for calculation that yields, in the case of Mr Moles, a total potential penalty of over $35 million, and in the case of Jobspy over $100 million.


case_outcome: referred to

case_text: Both parties referred me to several authorities in which s 65A of the TP Act has arisen for consideration: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25; Bond v Barry [2007] FCA 1484 ; Australian Competition & Consumer Commission v Seven Network Limited [2007] FCA 1505. None of these cases resolves the issue raised here.


case_title: Bond v Barry [2007] FCA 1484


case_outcome: cited

case_text: The importance of the identification of the group members on whose behalf a representative proceeding under Pt IVA of the FCA Act is brought, and of the specification of the common questions of law and fact hardly needs to be emphasised: see, for example, Bright v Femcare Limited (2002) 195 ALR 574; Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61. The reasons for careful identification of the group members have been explained in those two authorities.


case_text: The objection made is that these are not true imputations because, in substance, they simply repeat the express terms "Bankrupts", "Clearouts" or "Clearouts (watched)" or "Payment Default" as the case may be. Veda relies on Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [83] ff. In my view the criticism is well made. The pleading does not impute an act to, or state about, the applicant or other group member beyond that which is inherent in the expression used in Schedule "A" to the amended statement of claim. 38 This issue arises from paragraph 18 of the amended statement of claim (as at 03.08.07). Paragraph 18 (common to all three proceedings) pleads a case alternative to publication to the minds of officers of the subscribing credit providers. It commences: 18. To the extent, if at all (which is not admitted), that the Court found that, notwithstanding the publication of the information in paragraph 16 above, the said information was not read in its entirety by an individual on behalf of the subscribers of the Respondent to whom such information was published, but was interpreted or assessed, wholly or in part, by a computer, which computer recommended that any application for credit be declined, the latter information and/or recommendation was nevertheless published by the Respondent (via computer) to the said subscriber or subscribers of the Respondent, and the said publication was read and comprehended by the said subscribers (by one or more natural persons who were servants or agents of each such subscriber) and conveyed the following imputations ... 39 On 31 July 2007, Ebsworth & Ebsworth, solicitors for Veda, wrote to Gerard Malouf & Partners, solicitors for the applicants, asking them to specify the facts, matters and circumstances relied on in support of the allegation that Veda "nevertheless published" the information and/or recommendation. Gerard Malouf & Partners replied that paragraph 18 spoke for itself.


case_title: Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd (1987) 8 IPR 25


case_title: Petrusevski v Bulldogs Rugby League Ltd [2003] FCA 61


case_text: It is convenient to deal first with Apache's jurisdictional objection. It is not in dispute that, in the absence of the claims which are founded on the TPA, Newcrest could not pursue a case based on allegations of breach of contract in this Court. Nor is it in dispute that the Court will lack jurisdiction to deal with a controversy in circumstances in which the only federal claims relied are either colourable (in the sense of not being bona fide but rather relied on solely to attract the Court's jurisdiction) or trivial or insubstantial. In WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd [1999] FCA 1776 Finkelstein J stated the relevant principles (at [11] to [14]) as follows: "[11] This then requires me to determine whether the non-federal claims are justiciable in the Federal Court. The relevant cases show that if a federal claim which is said to enliven the accrued jurisdiction of the court to dispose of non-federal claims is trivial or unsubstantial, that will not be sufficient to attract that jurisdiction. The cases are collected in the judgment of Merkel J in Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 165. As Merkel J pointed out, triviality in this context does not require an examination as to whether the federal claim is less likely to succeed than the non-federal claim. Accrued jurisdiction does not depend upon an assessment being made of the strengths of the federal claim; rather the question is whether the federal claim is genuine. If the federal claim is colourable in the sense that it was made for the purpose of fabricating jurisdiction, of course the jurisdiction of the court is not enlivened: see Fitzroy Motors Pty Ltd v Hyundai Automotive Distributors Australia Pty Ltd (1995) 133 ALR 445. How is the genuineness of the claim to be determined? One way is to ask whether the federal claim is bound to fail, that is to say, to ask whether the claim is unarguable. If the federal claim is hopeless then it is difficult to see how an applicant could contend that it was pursuing the claim bona fide. [12] However, it is not only when a federal claim is colourable that the Federal Court would lack jurisdiction to deal with non-federal matters. In Fencott v Muller (at 609-610) in a joint judgment of Mason, Murphy, Brennan and Deane JJ, the following was said: "However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power." [13] In the present case, on balance I am not prepared to conclude that the asserted federal claims are not genuine in the sense that they are colourable and only brought for the purpose of fabricating jurisdiction, but what does seem plain to me is that the cause of action under s52 of the Trade Practices Act is "trivial or insubstantial" in the sense explained by the High Court in Fencott v Muller. This is not a claim that would be appropriately and conveniently determined in the exercise of federal jurisdiction. [14] In the result two things follow. First, the court does not have jurisdiction to entertain the non-federal claims. Second, there being no other claims that are relied upon to found jurisdiction in the Federal Court, the proceeding must be dismissed with costs." 19 Newcrest alleges that the respondents expressed opinions and made forecasts without having reasonable grounds to do so. It relies on ss 51A and 52 of the TPA. The particular opinions and forecasts are said to be found in the following documents: • The late June 2008 press release; • The 30 July 2008 letter from Apache; and • The 2 August 2008 letter from Santos. 20 It is said that those documents contain representations that, by mid-August, the respondents would be supplying Newcrest with its full gas entitlement under the contract. Newcrest says that, acting on these representations, it cancelled some temporary arrangements and then was forced to make further alternative arrangements when, in mid-August, full supply had not been restored. This led to Newcrest incurring substantial losses.


case_outcome: applied

case_text: In St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 ; (2004) 211 ALR 147 at 153-154 Hely J summarized a series of propositions which he derived from cases which had considered the construction of O 15A r 6. Those propositions were: "(a) the rule is to be beneficially construed, given the fullest scope that its language would reasonably allow, with the proper brake on excesses lying in the discretion of the Court, exercised in the particular circumstances of each case ..; (b) each of the elements prescribed in subparas (a), (b) and (c) of the rule must be established ... Preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves ...; (c) the test for determining whether the applicant has "reasonable cause to believe", as required by subpara (a), is an objective one ... The applicant does not have to make out a prima facie case ...; (d) belief requires more than mere assertion and more than suspicion or conjecture. Belief is an inclination of mind towards assenting to, rather than rejecting a proposition. Thus it is not sufficient to point to a mere possibility. The evidence must incline the mind towards the matter or fact in question. If there is no reasonable cause to believe that one of the necessary elements of a potential cause of action exists, that would dispose of the application insofar as it is based on that cause of action ...; (e) while uncertainty as to only one element of a cause of action might be compatible with the "reasonable cause to believe" required by subpara (a), uncertainty as to a number of such elements may be sufficient to undermine the reasonableness of the cause to believe ...; (f) the question posed by subpara (b) of the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to make a decision whether to commence proceedings in the court ... Accordingly, an applicant for preliminary discovery may be entitled to discovery in order to determine what defences are available to the respondent and the possible strength of those defendants, or to determine the extent of the respondent's breach and the likely quantum of any damages award ...; (g) whether an applicant has "sufficient information" for the purposes of subpara (b) also requires an objective assessment to be made ... The subparagraph contemplates that the applicant is lacking a piece (or pieces) of information reasonably necessary to decide whether to commence proceedings; (h) it is no answer to an application under the rule to say that the proceeding is in the nature of a "fishing expedition" ... Indeed order 15A r 6 "expressly contemplates" what once might have been castigated as "fishing" ..." See also Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216 at [44] .


case_title: Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216


case_text: In Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 at [43] Black CJ and Sackville J held that Hely J had "correctly summarised" the principles governing the proper construction of O 15A r 6 insofar as his summary dealt with O 15A r 6(a). 33 In his affidavit Mr Brown seeks to establish that each of the conditions, imposed by O 15A r 6, has been met. He deposes that Newcrest believes that it has or may have a right to obtain relief against the respondents on the basis that it believes that the respondents have breached a contractual obligation to provide Newcrest with its fair pro-rated share of gas produced from the Brookes field and that the respondents have made statements which may constitute misleading and deceptive conduct in contravention of s 52 of the TPA and/or s 10 of the Fair Trading Act 1987 (WA). He says that the attempts made by Newcrest to obtain relevant information have proved fruitless and that he believes that the respondents have or are likely to have relevant documents in their possession. 34 For reasons already given in dealing with Apache's argument relating to jurisdiction, I consider that there is reasonable cause to believe that Newcrest may have a right to obtain relief under the TPA. The evidence suggests that each element of a cause of action under s 52 of the TPA may be present. Moreover, Apache did not seriously contest Newcrest's contention that it had, in addition, a viable cause of action for breach of its supply contract with Apache.


case_text: These circumstances raise an issue as to the nature of this application. An order dismissing an application for an order nisi is interlocutory: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 297 ; (2003) 134 FCR 377 at 378 [3] . Accordingly, leave to appeal is required by s 24(1A) of the Federal Court of Australia Act 1976 (Cth). The applicant has not obtained leave to appeal. 3 However, counsel for the first respondent informed the Court that the first respondent did not oppose this application being treated as an application for leave to appeal. I have proceeded on that basis and will treat this application as an application for leave to appeal.


case_text: An application for leave to appeal falls to be determined by reference to the principles established by the Full Court's decision in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. That case applied a two-limbed test to determine when leave to appeal from an interlocutory decision should be granted. First, the decision below must be attended with sufficient doubt to warrant its being reconsidered by this Court; secondly, substantial injustice must be demonstrated if leave were to be refused, supposing the decision to be wrong: at 398. 5 The principal submission made on behalf of the first respondent was that the applicant has not satisfied the first of these requirements. That is, the first respondent submitted that the Federal Magistrate's decision is not attended with sufficient doubt as to warrant its reconsideration by this Court. 6 It is convenient to note the origins of this proceeding. The applicant filed an application in the High Court for an order nisi on 21 April 2003, which was remitted to the Federal Court by Heydon J on 25 August 2003. The matter was remitted to the Federal Magistrates Court by Emmett J on 5 August 2005.


case_text: The question whether conduct is sufficiently serious to amount to persecution is a factual matter for the Tribunal: see Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 at [50] - [53] ; Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334 ; (2002) 125 FCR 68 at [3] , [50] [53]. On a fair reading of the Tribunal's reasons, the reference to harassment and discrimination not reaching a sufficient level of seriousness to be characterised as persecution referred to the harassment and discrimination suffered by the applicant and his family after the war. In my view, the Tribunal's reference was not directed to the physical assault that the applicant suffered. In any event, I am not satisfied that the Tribunal's findings of fact were unreasonable or erroneous or not reasonably open to it.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] FCA 334 ; (2002) 125 FCR 68


case_text: The second ground relied upon by the applicant is that the Tribunal applied the wrong test in applying s 91R(1)(a) of the Act. The applicant submitted that the Tribunal found that the essential and significant motivation for the harm feared by the applicant was that criminals wanted to take control of his family's assets. According to the applicant, the Tribunal arrived at this conclusion erroneously by considering the 'primary motivating factor' in the actions taken by the criminals. In substance, the applicant's argument is that the expression 'primary motivating factor' departed from the language of the Act and led the Tribunal to address the wrong question, giving rise to a jurisdictional error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. 24 The Tribunal's reasons for decision ought not to be read in an over-technical or pedantic way. They must be read fairly and in context. The expression 'primary motivating factor' was used by the Tribunal on one occasion. Elsewhere in its reasons, both before and afterwards, the Tribunal used the phrase 'the essential and significant reason' or 'the essential and significant motivation'. These expressions correctly reflect the test that is required in relation to s 91R(1)(a). I agree with the submission made on behalf of the first respondent that when the various passages in the Tribunal's reasons are considered together and in context, it becomes clear that the Tribunal applied the correct test. In my opinion, there was no error in the Tribunal's conclusion that the applicant's evidence concerning what happened to his family strongly suggest that the essential and significant reason for these events was that criminals wanted to take control of his family's assets. 25 This conclusion was reached by Scarlett FM and I agree with his Honour's reasons.


case_text: The third ground raised by the applicant was that the Tribunal did not adequately consider whether or not the State of Bangladesh had tolerated, condoned or was complicit in the criminal activities of Mohammed Ali and his associates. The applicant submitted that the Tribunal had therefore failed to deal with the integers of the applicant's claim, thereby constituting a jurisdictional error: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]; W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69 at [31]-[38]; SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65 at [40] . The applicant contended that the criminal activities directed at his family were instigated, and were successful, because the criminals knew that the State would fail to offer protection to the applicant and his family due to their Pakistani ethnicity. The applicant complained that there was evidence before the Tribunal of the State's tolerance and complicity in the criminal activity perpetrated against his family and himself because of their ethnicity.


case_title: W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 69


case_title: SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65


case_text: As counsel for the first respondent conceded, this statement is problematical: see Appellant S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1. There is, therefore, substance in the applicant's complaint that the Tribunal asked the wrong question by stating that the applicant could avoid persecution on his return to Bangladesh. The Tribunal should have inquired into what may happen to the appellant if he returned to Bangladesh. However, I do not regard this deficiency in the Tribunal's reasons as providing a basis for granting leave to appeal. The Tribunal determined the case adversely to the applicant on the basis that it was not satisfied that the essential and significant reason for any harm that the applicant has suffered in the past, or fears in the future, was for a Convention reason. The Tribunal did not fall into error in reaching that conclusion.


case_title: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 ; (2005) 216 ALR 1


case_title: Australian Competition and Consumer Commission v Jurlique International Pty Ltd (2007) ATPR 42 ,146


case_text: parties also recognise that a principal object of a penalty under s 76 is deterrence ( NW Frozen Foods ). As elaborated, the concept of deterrence is to deter repetition by the contravener and by others who might be tempted to contravene the Act ( TPC v CSR at 52,125 per French J), or to deter others who might be tempted to think that contravention would be of benefit and detection would lead merely to a compliance program for the future ( NW Frozen Foods at 294 295 per Burchett and Kiefel JJ). The need to achieve general deterrence as well as specific deterrence means that a party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention ( Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] per Goldberg J).


case_text: note also that, as French J said in Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 at [18] , it is not sufficient, in making a consent order, that it is within the power of the Court to make the order nor that the parties have privately agreed as to the proposed order. The Court is not merely giving effect to the wishes of the parties. It is exercising a public function and must have regard to the public interest in doing so. As to the specific matters relevant in the present case, the parties have made submissions on: the nature and extent of the contravening conduct; the amount of loss or damage caused; the circumstances in which the conduct took place; similar conduct in the past whether the contravener has previously been found by the Court to have engaged in similar conduct; the size of the contravening company; the degree of power the contravening company has, as evidenced by its market share and ease of entry into the market; the deliberateness of the contravention and the period over which it extended; whether the contravention arose out of conduct of senior management or at a lower level; whether the company has a corporate culture conducive to compliance with the Code, as evidenced by compliance programs and corrective measures in response to an acknowledged contravention; whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Code in relation to the contravention; the financial position of the respondents; the deterrent effect of the proposed penalty; and totality and parity. Application of the principles The nature and extent of the contravening conduct The Understanding was reached at the AGM of the AKA, a sporting association whose members are kart racing associations based in NSW and the ACT. Mr Erdmann and Mr Whiting participated in a discussion amongst the representatives of the AKA clubs in attendance at the AGM, that discussion leading to the motion being proposed. The members voted and passed the Resolution which gave rise to the understanding. The understanding was given effect to on three occasions when Prokart received quotes from the AKA regarding the hire of kart circuits on which to hold its race series. The conduct ceased once the AKA became aware of the ACCC investigation and the possible contravention of the Code, which was less than three months after the Resolution was passed. The Resolution was subsequently revoked. The amount of loss or damage caused


case_text: the present proceedings concern contraventions of the Code only, the Court has jurisdiction under s 39B(1A)(a) of the Judiciary Act 1903 (Cth) which confers original jurisdiction on the Federal Court in proceedings where the Commonwealth seeks an injunction or declaration (similarly to Australian Competition and Consumer Commission v White Top Taxis Ltd [2009] FCA 88 ; (2009) 253 ALR 449). The principles for assessing penalty under the Code are the same as under the TPA ( White Top Taxis at [20] per Finkelstein J).


case_text: AKA, Wagga Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they made an arrangement or arrived at an understanding in contravention of s 45(2)(a)(i) and (ii) of the Code ( Hughes v Western Australian Cricket Association (Inc) (1986) 19 FCR 10). The AKA, Dubbo Kart Club, Newcastle Kart Club and Manning Valley Kart Club admit that they gave effect to an arrangement or understanding which contained a provision which: (a) was an exclusionary provision; and (b) had the purpose and was likely to have the effect of substantially lessening competition; in contravention of s 45(2)(b)(i) and 45 (2)(b)(ii) of the Code, by the conduct outlined above. Each of Mr Erdmann and Mr Whiting admits that they were knowingly concerned in, or a party to, the making of or the arriving at the Understanding which was in contravention of s 45(2)(a)(i) and 45 (2)(a)(ii) of the Code. I am satisfied that in each case those contraventions have been made out. PENALTY Legal principles and relevant factors


case_text: of the respondents has consented to the imposition of injunctions. The injunctions are available pursuant to s 80 of the Code and are in the nature of public interest injunctions ( ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 255 to 256 per Lockhart J; Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 at 602 per Gleeson CJ and McHugh J).


case_text: 76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ).


case_text: in mind the process as set out by the High Court in Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court ( NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors ( Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case ( NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993).


case_text: in mind the process as set out by the High Court in Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court ( NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors ( Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case ( NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993). The imposition of a financial penalty is a matter for the Court, whether or not the parties propose an agreed figure ( Mobil Oil ). I am aware that the AKA can pay the proposed penalty of $10,000 without going out of business or seriously impeding its activities. I am also aware of the strictures as enunciated in the cases of not substituting an amount by way of penalties simply because another sum comes to mind. I am mindful of the fact that the AKA has agreed to pay a contribution to the ACCC's costs of the proceedings in an amount to be agreed. I am conscious of the fact that this is a voluntary organisation conducting kart racing in the interests of an interested section of the public. I have taken into account the various factors elucidated in Mobil Oil regarding the public interest in the settlement of litigation. Further, I take into account the following: I am satisfied that the agreed amount of $10,000 is within the permissible range in the present circumstances. I am satisfied that it is appropriate to make the orders as proposed by consent. I will make the orders in Annexure A to these reasons, which, apart from one proposed declaration as to which there was no supporting evidence in the statement of agreed facts, accord with the orders proposed by the parties. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 6 November 2009 Counsel for the Applicant: Mr D Godwin Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr J Stephenson Solicitor for the Respondents: Simpson & Partners Solicitors Pty Limited Date of Hearing: 24 September 2009 Date of Judgment: 6 November 2009 Annexure A THE COURT DECLARES THAT: Each of the first respondent ("the AKA"), second respondent ("Wagga Kart Club"), the third respondent ("Newcastle Kart Club") and the fourth respondent ("Manning Valley Kart Club"), by making a contract or arrangement or arriving at an understanding containing provisions that: (a) each of the AKA clubs with bitumen kart circuits ("Kart Circuits") would not offer to supply, and would not supply Kart Circuit hire services at a price less than $4,000 plus GST per day for country clubs and $6,000 per GST per day for metropolitan clubs ("Minimum Hire Fee"); and (b) any negotiations for the supply of Kart Circuit hire services would be conducted by the AKA; made a contract or arrangement or arrived at an understanding ("Kart Circuit Hire Understanding") that: (c) had the purpose or the effect, or were likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits in competition with each other to customers or prospective customers in New South Wales and the Australian Capital Territory within the meaning of section 45A of the Competition Code of New South Wales ("the Code"); and (d) by reason of the matters alleged in subparagraph (c) above, is deemed to have the purpose or effect, or to be likely to have the effect, of substantially lessening competition in the market in New South Wales and the Australian Capital Territory for the supply of Kart Circuit hiring services within the meaning of section 4E of the Code ("Kart Circuit Market"), for the purposes of section 45(2)(a)(ii) of the Code; and thereby engaged in a contravention of section 45(2)(a)(ii) of the Code. Each of the AKA, Wagga Kart Club, Newcastle Kart Club and Manning Valley Kart Club, by making or arriving at the Kart Circuit Hire Understanding in circumstances where two or more parties to the Kart Circuit Hire Understanding supplied Kart Circuit hire services in competition with each other, made a contract or arrangement or arrived at an understanding which contained a provision, the purpose or a substantial purpose of which was to prevent, restrict or limit one of more of the following: (a) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart series operator who is not an AKA member on condition that the customer pay at least the Minimum Hire Fee; and (b) the acquisition by any kart series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits on condition that the customer shall pay at least the Minimum Hire Fee; being an exclusionary provision within the meaning of section 4D of the Code, and thereby engaged in conduct in contravention of section 45(2)(a)(i) of the Code. The fifth respondent ("Dubbo Kart Club"), by its conduct in corresponding with the AKA regarding the hire of the Lincoln County Raceway by Prokart for the Minimum Hire Fee or a higher fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby: (a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. The AKA, by its conduct in liaising with Prokart and Dubbo Kart Club regarding the hire of the Lincoln County Raceway for the Minimum Hire Fee or a higher fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby:: (a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. 5. Manning Valley Kart Club, by its conduct in: (a) advising Prokart that any negotiations for the supply of Kart Circuit hire services would be conducted by the AKA; and (b) liaising with the AKA regarding the hire of the Manning Valley Kart Circuit by Prokart for the Minimum Hire Fee; gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby: (c) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (d) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. The AKA, by its conduct in liaising with Prokart and Manning Valley Kart Club regarding the hire of the Manning Valley Kart Circuit for the Minimum Hire Fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby: (a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. Newcastle Kart Club, by its conduct in liaising with the AKA regarding the hire of the Newcastle Kart Circuit by Prokart for the Minimum Hire Fee, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby: (a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. The AKA, by its conduct in liaising with Prokart and Newcastle Kart Club regarding the hire of the Newcastle Kart Circuit, gave effect to the provisions of the Kart Circuit Hire Understanding as characterised in declarations 1 and 2 above and thereby: (a) engaged in conduct in contravention of section 45(2)(b)(ii) of the Code; and (b) engaged in conduct in contravention of section 45(2)(b)(i) of the Code. The sixth respondent ("Mr Erdmann") by his involvement in the making of or arriving at the Kart Circuit Hire Understanding with the knowledge of the essential elements of the contraventions of section 45(2)(a)(ii) and section 45(2)(a)(i) of the Code referred to in declarations 1 and 2 above, was a person directly or indirectly knowingly concerned in, or party to, those contraventions, which constitutes conduct of the kind referred to in section 75B(1)(c) and/or section 80(1)(e) of the Code. The seventh respondent ("Mr Whiting") by his involvement in the making of or arriving at the Kart Circuit Hire Understanding with the knowledge of the essential elements of the contraventions of section 45(2)(a)(ii) and section 45(2)(a)(i) of the Code referred to in declarations 1 and 2 above, was a person directly or indirectly knowingly concerned in, or party to, those contraventions, which constitutes conduct of the kind referred to in section 75B(1)(c) and/or section 80(1)(e) of the Code. AND, the Court orders that: The AKA pay to the Commonwealth a total pecuniary penalty of $10,000 within three months of the date of this order. That the AKA be permanently restrained whether by itself, its servants or agents from: (a) making, or arriving at; (b) giving effect to; or (c) attempting to make or arrive at, or give effect to; any contract, arrangement or understanding with any two or more AKA members in Australia which contains a provision that: (d) has the purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or (e) has the purpose of preventing or restricting one or more of the following: (i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member on condition that the customer pay at least a minimum hire fee; or (ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee. An injunction permanently restraining each of Wagga Kart Club, Newcastle Kart Club, Manning Valley Kart Club, Dubbo Kart Club whether by themselves, their servants or agents from: (a) making, or arriving at; (b) giving effect to; or (c) attempting to make or arrive at, or give effect to; any contract, arrangement or understanding with any other AKA member in Australia which contains a provision that: (d) has purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or (e) has the purpose of preventing or restricting one or more of the following: (i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member by the imposition of a condition that the customer pay at least a minimum hire fee; or (ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee. An injunction permanently restraining each of Mr Erdmann and Mr Whiting whether by themselves, their servants or agents from: (a) attempting to induce the making, or arriving at, or the giving effect to; or (b) being knowingly concerned in, or party to, the making or arriving at, or giving effect to; any contract, arrangement or understanding with any two or more AKA members in Australia which contains a provision that: (c) has purpose or the effect, or is likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for Kart Circuit hire services supplied by AKA clubs with Kart Circuits to customers or prospective customers in New South Wales and the Australian Capital Territory; or (d) has the purpose of preventing or restricting one or more of the following: (i) the supply by AKA clubs with Kart Circuits of Kart Circuit hire services to any kart race series operator who is not an AKA member by the imposition of a condition that the customer pay at least a minimum hire fee; or (ii) the acquisition by any kart race series operator who is not an AKA member of Kart Circuit hire services from AKA clubs with Kart Circuits by the imposition of a condition that the customer pay at least a minimum hire fee. 15. The AKA shall: (a) within three months of the date of this order, establish an education training and trade practices compliance program ("Compliance Program") for officers and employees of its business, which is designed to instil an awareness of the prohibitions contained in Part IV of the Code (including section 45 and section 45A) in relation to the contravening conduct in this proceeding or any similar or related conduct; b) within one month of the date of this order, appoint a legal adviser to advise the AKA as to the content of the Compliance Program; (c) implement and administer the Compliance Program for a period of three years from the date it is established; (d) within three months of the date of this order, prepare a written report to the applicant ("the ACCC") on the content of the Compliance Program; and (e) provide a further report to the ACCC on the implementation and administration of the Compliance Program at the conclusion of each period of 12 months during which the Compliance Program is being implemented and administered. The AKA shall within three months of the date of this order, cause to be sent to each member of the AKA a letter substantially in the form of Attachment 1. The AKA to pay a contribution to the ACCC's costs of the proceedings in an amount as agreed between the parties. ATTACHMENT 1 Letter to AKA members [To be placed on the AKA letterhead] [Date] Dear Sir/Madam Anti-competitive arrangement by the AKA Following civil proceedings instituted by the Australian Competition and Consumer Commission ("ACCC"), the Federal Court of Australia has found that the Australian Karting Association (NSW) Incorporated ("the AKA") and three AKA members made an anti-competitive arrangement at the annual general meeting of the AKA which was held on 19 July 2008. The Court has declared that the AKA engaged in anti-competitive conduct (contravening the Competition Code of New South Wales ("the Competition Code")) by making an arrangement: to fix the minimum price for the hire of kart circuits by AKA clubs (which is said to substantially lessen competition); and to prevent, restrict or limit the hire of kart circuits by AKA clubs to non-AKA members by imposing a condition that the non-AKA members pay at least the minimum price (which is an exclusionary provision); and later giving effect to the above arrangement. The Competition Code has the same provisions as the Trade Practices Act 1974 (Cth), but applies to individuals and non-trading associations such as AKA clubs. One of the Court's orders is that the AKA must write to each member to notify them of the outcome of these proceedings and to inform them of the illegality of making and giving effect to arrangements which substantially lessen competition or contain an exclusionary provision. The AKA has been ordered to pay a penalty of $10,000 and to pay a contribution to the ACCC's costs. The Court has also granted injunctions restraining the AKA from making arrangements of this kind in the future and has ordered that the AKA establish a trade practices compliance program. If as an AKA member you: agree with other AKA members to a minimum or set price for the hire of kart circuits; agree with other AKA members to prevent, restrict or limit the hire of kart circuits by AKA clubs to a particular class of persons on particular conditions; or give effect to an agreement set out above, you may be in breach of the Competition Code and may be liable to pay fines of up to $10,000,000 for a company or $500,000 for an individual, as well as damages for any loss that is caused. You can obtain further information about the ACCC's proceedings against the AKA and the Trade Practices Act 1974 / Competition Code from the ACCC website at www.accc.gov.au . Yours sincerely President AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1255.html


case_title: Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383


case_text: 76 of the Code sets out certain matters as relevant matters to which the Court should have regard in determining an appropriate pecuniary penalty. The parties in the joint submissions referred to further relevant factors addressed by French J in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-52,153 and expanded upon in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 and J McPhee & Son (Australia) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365 ; (2000) 172 ALR 532. It is uncontroversial as between the parties that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved ( Mornington Inn v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at [42] - [45] , [91] per Stone and Buchanan JJ). The parties also recognise that a principal object of a penalty under s 76 is deterrence ( NW Frozen Foods ). As elaborated, the concept of deterrence is to deter repetition by the contravener and by others who might be tempted to contravene the Act ( TPC v CSR at 52,125 per French J), or to deter others who might be tempted to think that contravention would be of benefit and detection would lead merely to a compliance program for the future ( NW Frozen Foods at 294 295 per Burchett and Kiefel JJ). The need to achieve general deterrence as well as specific deterrence means that a party's capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and proportionate to the seriousness of the contravention ( Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] per Goldberg J). Bearing in mind the process as set out by the High Court in Markarian v The Queen [2005] HCA 25 ; (2005) 228 CLR 357 for the assessment of criminal sanctions where penalties are not fixed by statute, the ACCC and the AKA jointly submit that a total pecuniary penalty of $10,000 imposed on the AKA is appropriate and within the range of penalties that a Court would order in these circumstances. The parties point out that in considering the proposed agreed penalty, the Court should take into account the fact that a negotiated resolution may be expected to include measures designed to promote, for the future, vigorous competition in the particular market. The imposition of penalty is a matter for the Court ( NW Frozen Foods at 290) and the assessment of the appropriate penalty involves exercising a discretion taking into account all relevant factors ( Markarian at [27]). However, the parties submit that the Court should not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure except in a clear case ( NW Frozen Foods at 291, approved and explained in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 ; (2004) ATPR 41-993).


case_text: declarations sought in the proposed orders are sought pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). The parties submit that the proposed declarations, in a convenient and abbreviated form, sufficiently identify the contravening conduct ( Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at [89] [90]) and thereby provide context for the pecuniary penalties. Accordingly, the parties submit the declarations operate with the pecuniary penalties to achieve the objective of general deterrence. I am satisfied that it is appropriate to make the declarations in the form sought. Injunctions


case_title: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076


case_title: Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591


case_text: 28 November 2008, the Court published its reasons for judgment on liability issues in this proceeding. In that judgment the Court found that the respondent Union contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth) ("the Act"). This judgment deals with the question of the penalty, if any, which should be imposed on the Union for that contravention. These reasons should be read together with the reasons for judgment in the substantive matter ( Duffy v Construction, Forestry, Mining and Energy Union [2008] FCA 1804). The Union engaged in unlawful industrial action under the Act by the imposition by its organisers of limited and short lived bans on the performance of work at a building site called the University Hill site. The relevant portion of the judgment in the substantive matter is set out at [16] to [25]. The following points from that part of the substantive judgment are of particular current relevance: (a) 20 October 2005 a ban was placed on work at the site because of the lack of a female toilet whilst a female worker was present and the absence of a site contamination report; after 9.30 am no work was performed on the site, other than by two employees of the head contractor; there were only two sub-contractors working on site immediately before the imposition of the ban: (i) Crushtec Australia Pty Ltd — who had Ms Sally Belcher performing work on site; and (ii) V&G Concrete Constructions Pty Ltd who had Mr Fred Gilliland and Mr Shannon Gilliland performing work on the site. (b) 21 October 2005


case_text: recording that fine, I acknowledge that Union is a large body with considerable assets but it is a body which does not exist to make profit but exists for the benefit of its members; see Australian Competition & Consumer Commission v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2004] FCA 517 at [8] per Gray J. It also should be acknowledged, in mitigation of penalty, that the relevant organisers, in imposing the bans, acted in response to what they perceived to be an unsafe workplace where as they were told by the site manager that no soil contamination report had been obtained for the site. The parties agree that each party should bear his and its own costs of the proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 31 March 2009 Counsel for the Applicant: Mr R Dalton Solicitor for the Applicant: DLA Phillips Fox Counsel for the Respondent: Mr E White Solicitor for the Respondent: Slater & Gordon Date of Hearing: 31 March 2009 Date of Judgment: 31 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/299.html


case_text: about six months of the relevant events, the Union organised a seminar designed to educate its officials about the effects of the Act. This conduct indicates a desire to avoid repetition of conduct in breach of the Act; see Stuart-Mahoney v Construction, Forestry, Mining & Energy Union [2008] FCA 1426 at [53] per Tracey J. There is similar previous conduct, most relevantly in Stuart-Mahoney . The events of which occurred about a fortnight before the current events, although that case is not a prior contravention it shows that similar conduct had been undertaken in the past. I say "similar" in a rather loose sense because the imposition of the overtime ban in that matter was far more serious and had far more widespread effects than the transient bans in this matter. Deterrence is important, both general and specific. That is why, notwithstanding the conduct of the head contractor which led to the short lived bans of little consequence, there should be some monetary penalty imposed to reflect that a statutory provision has been breached. It is not as if there was no alternative but to impose a ban. Focussed talks with the head contractor at a high level and/or a referral of the issue to the Commission and/or Worksafe inspectors were alternative available courses of action. In Stuart-Mahoney , Tracey J imposed a penalty of $20,000 for breach of s 38 of the Act in respect of events occurring about the same time as the instant events. Even taking into account the application of the totality principle in that case, the significance and seriousness of the current breach are far less than the circumstances considered by Tracey J. Accordingly, I consider a fine of $5,500 to be appropriate in the current circumstances.


case_outcome: discussed

case_text: There was no serious dispute that the first respondent, who had been convicted of theft, breached his duties as a trustee. Thus, the declarations were not controversial. Rather, at the first hearing of this matter on 20 September 2004, the key question was whether the Commonwealth was entitled to recover the full amount of the bond or only for compensable loss: see Inspector General in Bankruptcy v Bradshaw [2005] FCA 424 ( Bradshaw 1) at [10] and following. 3 At the first hearing, the Commonwealth did not attempt to prove any costs incurred in relation to the investigation and prosecution of the first respondent. Rather, the Commonwealth pursued its claim that it was entitled to recover the full amount of the bond regardless of the amount of loss. I rejected this contention and held that the Commonwealth was entitled to recover only that which was proven to be its compensable loss: see Bradshaw 1 at [79]. 4 I also stated that I would not dismiss the application before giving the applicants an opportunity to adduce further evidence as to the quantum of the Commonwealth's loss: see Bradshaw 1 at [80]. I adjourned the further hearing of the proceeding to allow the Commonwealth this opportunity.


case_text: At the second hearing, the respondents' primary submission, which I ultimately accepted, was that the applicants should not be permitted to reopen their case to prove the quantum of loss: see Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 ( Bradshaw 2) at [28]. Accordingly, I made the declarations sought by the applicants but their application of 12 August 2004 was otherwise dismissed. The issue of costs now falls for determination.


case_text: The applicants submitted that the respondents should pay their costs on a party and party basis up to and including 15 April 2005 (the date I delivered reasons for judgment in Bradshaw 1 ). They conceded that they must bear the respondents' costs thereafter, although only on a party and party basis. There was, they said, nothing in their conduct of the case that warranted a departure from the usual course, because their reliance on Re Smith; ex parte Inspector-General in Bankruptcy [1996] FCA 1076 (" Re Smith ") was not unreasonable and, in respect of the application to reopen, the Court had itself considered, as at 15 April 2005, that the applicants should be given an opportunity to quantify their loss. 8 The applicants contended that, even though no monetary order was made in their favour, they were partially successful in the proceeding. They noted that: (1) the respondents had not admitted that the first respondent breached the bond; (2) the first respondent argued unsuccessfully that the applicants' claim was statute-barred; and (3) the second respondent argued unsuccessfully that it had revoked its surety. The applicants observed that they had in fact established liability under the bond and as surety, although the applicants properly conceded that arguments (2) and (3) "did not occupy a great deal of the court's time". 9 The respondents contended that the making of the declarations was never controversial and that the real question in dispute was whether "the bond was, in effect, a good behaviour bond, forfeitable without proof of loss". They sought their costs on a party and party basis until 15 April 2005, after which they sought costs on an indemnity basis. They argued that costs incurred after 15 April 2005 were incurred unnecessarily because evidence quantifying loss could have been led at an earlier stage. They contended that they would not have incurred any costs subsequent to 15 April 2005 had the application to reopen not been made. In written submissions, the second respondent said that "[t]he 'special or unusual' circumstances warranting an order for indemnity costs are the loss of time to the parties and the Court by the Applicants taking the approach that they did". 15 I am of the view that the justice of the case warrants an award of indemnity costs in the respondents' favour for the period after 15 April 2005. The decision in Re Smith may explain the applicants' conduct at the first hearing but it does not explain their conduct thereafter. Further, whilst it is true to say that, as at 15 April 2005, the court itself considered that the applicants should be given an opportunity to quantify their loss, the court formed the contrary view when it was informed of the circumstances known to both parties and relevant to the issue. 16 As already stated in Bradshaw 2 at [23], these circumstances showed that the applicants should be taken to have opened and closed their case at the first hearing on the basis that they would not quantify their loss. Although there were factors militating in favour of a grant of leave to reopen, they were outweighed by contrary considerations. These considerations included that: (1) the applicants deliberately chose not to quantify the Commonwealth's loss at the first hearing; (2) prior to the first hearing, the applicants had plainly led the respondents to believe that the applicants were proceeding on the basis that quantum was irrelevant and, in any case, that the loss could not be quantified; (3) the applicants did not make any application for a split trial, although it was open to them to do so; (4) before the first hearing, the applicants knew that it would be said against them that they could not succeed without evidence quantifying their loss; and (5) whilst there were no pleadings, the issue in debate was clearly addressed in the correspondence between the parties prior to the first hearing. These considerations are also relevant to the respondents' application for indemnity costs. 17 Had had the applicants so chosen, they might have led evidence as to quantification at the first hearing. Had they done so, they could have argued that the Commonwealth was entitled to the amount of the bond but they could also have sought to quantify their loss in the event that the court preferred the respondents' submission on the point to theirs. Had the applicants done this, then there would have been no occasion for any subsequent hearings. The applicants took the stance, however, that the quantum of the loss was irrelevant and the loss could not be quantified. In my view, the applicants acted unreasonably in seeking to resile from the position that that they had adopted in communications with the respondents prior to and at the first hearing. The costs incurred by the respondents after 15 April 2005, when Bradshaw 1 was delivered, should be paid by the applicants on an indemnity basis. I reiterate that although, as at that date, I was minded to give the applicants a further opportunity to quantify their loss, I formed a clear contrary view once I was informed of the circumstances known to both parties, though not the court, as at that date.


case_text: The first respondent made an alternative claim for indemnity costs for the period following 28 June 2005. On that day, the applicants rejected a settlement offer, made by letter of 21 June 2005, for $23,248 "in full and final settlement of all the Applicants' claims in this matter (exclusive of costs), being the total sum of all disbursements you have claimed". Referring to Calderbank v Calderbank [1975] 3 All E R 333, the first respondent submitted that he should receive costs on an indemnity basis after that date. 18 As the first respondent noted, costs may also be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The rejection of a Calderbank offer does not of itself warrant an order of indemnity costs, even if the offeree fails to secure a more favourable outcome in the proceedings. In order for there to be an indemnity costs order, the respondents must show that the applicants' rejection of their offer was so unreasonable as to justify indemnity costs: see, e.g., Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. In this case, the applicants acted unreasonably in seeking to resile from the position that they had adopted in communications with the respondents prior to and at the first hearing. In my view, the rejection of the Calderbank offer was unreasonable in all the circumstances because, as at 28 June 2005 (after the directions hearing of 8 June 2005), the applicants should have appreciated that they would not be able to quantify the Commonwealth's loss unless granted leave to reopen their case, and that there were serious doubts that such leave would be forthcoming. This alternative basis would also support an award of indemnity costs in the first respondent's favour in respect of the period after 28 June 2005.


case_text: The power of the Court to make orders for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). A successful litigant is ordinarily entitled to an award of costs: see, e.g., Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 97 per McHugh J (dissenting in result) and 120-1 per Kirby J. The power to make orders for costs is, however, discretionary, although it "must be exercised judicially and not against the successful party except for some reason connected with the case": see Ruddock v Vadarlis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229 (" Ruddock v Vadarlis (No 2) ") at 234 per Black CJ and French JJ. Ordinarily, if a successful party is denied an order for costs in whole or part, it is because the party's conduct of the proceeding in some respect or respects makes it just or reasonable to do so: see, e.g., Ruddock v Vadarlis (No 2) at 236 and Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 544 per Mason CJ.


case_text: An unsuccessful party is not automatically entitled to costs in respect of those issues of facts or law on which the successful party failed: see Dr Martens Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] per Goldberg J; also Re Elgindata Ltd (No 2) [1993] All ER 232 at 237 per Nourse LJ, cited with approval in Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699 at [9] per Hely J; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271-2 per Gummow, French and Hill JJ; Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81 per Keely J at 84; and Toohey J in Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748 at 48,136, citing Cretazzo v Lombardi (1975) 13 SASR 4 at 16 per Jacobs J.


case_title: Re Elgindata Ltd (No 2) [1993] All ER 232


case_title: Hayle Holdings Pty Ltd v Australian Technology Group Ltd (No 2) [2000] FCA 1699


case_title: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261


case_title: Mok v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 47 FCR 81


case_title: Hughes v Western Australia Cricket Association (Inc) (1986) ATPR 40 748


case_title: Cretazzo v Lombardi (1975) 13 SASR 4


case_text: In Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 156-157, Cooper and Merkel JJ said that: (a) the court ought not to depart from the usual party and party basis for costs unless this was warranted by the circumstances of the case; and (b) these circumstances arise "as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course".


case_text: As the first respondent noted, costs may also be awarded on an indemnity basis where a proceeding is unduly prolonged by an imprudent refusal of an offer of compromise: see Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233 per Sheppard J. The rejection of a Calderbank offer does not of itself warrant an order of indemnity costs, even if the offeree fails to secure a more favourable outcome in the proceedings. In order for there to be an indemnity costs order, the respondents must show that the applicants' rejection of their offer was so unreasonable as to justify indemnity costs: see, e.g., Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281 at 287-290 per Hely J. In this case, the applicants acted unreasonably in seeking to resile from the position that they had adopted in communications with the respondents prior to and at the first hearing. In my view, the rejection of the Calderbank offer was unreasonable in all the circumstances because, as at 28 June 2005 (after the directions hearing of 8 June 2005), the applicants should have appreciated that they would not be able to quantify the Commonwealth's loss unless granted leave to reopen their case, and that there were serious doubts that such leave would be forthcoming. This alternative basis would also support an award of indemnity costs in the first respondent's favour in respect of the period after 28 June 2005.


case_title: Port Kembla Coal Terminal Ltd v Braverus Maritime Inc (No 2) (2004) 212 ALR 281


case_text: The Federal Magistrate considered the ambit of s 422B of the Migration Act 1958 (Cth) ("the Act ") and found, in the light of authority, that she was bound to follow the decision of the Federal Court in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 ; (2005) 148 FCR 302, where Branson J considered the possible operation of principles of procedural fairness beyond the scope of the obligations imposed by s 424A of the Act and concluded there was no scope for any wider obligation to provide particulars of information in relation to the Tribunal's review process. Barnes FM found that the appellant's grounds of complaint in relation to the breach of common law rules of procedural fairness could not succeed since the effect of s 422B was that there was no obligation on the part of the Tribunal to put its concerns about the document to the appellant for explanation. 21 The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act , SZBDF , and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO . I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B.


case_text: The Federal Magistrate considered moreover that the issue arising in WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 ; (2003) 77 ALD 1 (Lee, Hill and Carr JJ) was distinguishable, as the Tribunal did not make here a positive finding of fraud but rather accorded the letter no weight. 12 In relation to grounds of review raised by the appellant below regarding the obligation of the Minister under s 424A(1) of the Act , the Federal Magistrate found no error to have been established. The country information and the Tribunal's comments on the implausibility of the letter transmitted by fax on 29 November 2003 from a Mr Baksi were excepted from any operation adversely to the Minister of s 424A(3) of the Act . Furthermore her Honour considered that the letter did not constitute a matter upon which the Tribunal relied upon as constituting the inconsistencies between the information provided to the delegate and that to the Tribunal, and further took the view moreover that the Tribunal's thought processes were not information falling within the scope of operation of s 424A(1) of the Act in any event. 13 The Federal Magistrate found in addition that there was no evidence to support the appellant's other grounds for review sought to be advanced in his submissions to the Court, and that the purported grounds for review sought by the appellant were in the nature of merits review of the Tribunal's decision. In the result, her Honour found no reviewable error was established and dismissed the application for review. 14 On 26 May 2006 the appellant filed a notice of appeal, which purported to challenge the Federal Magistrate's decision on a number of grounds. The notice of appeal included the following grounds: the Tribunal failed to take into account relevant considerations and evidence; the Tribunal denied the appellant procedural fairness by failing to provide the appellant with a reasonable opportunity to respond to country information; the Tribunal failed to investigate the provenance of the letter from the Dum Dum Trinamool Yuba Congress, faxed on the 29 November 2003; the Tribunal made findings which were not open on the evidence; and that the Tribunal erred in finding that the appellant could avoid harm if he ceased to be involved in politics in India. 15 The appellant provided five pages of written submissions in support of the purported grounds of appeal. The Minister responded in detail to those submissions. When the appeal was called on for hearing, the appellant informed the Court to the effect that he had nothing to add beyond the scope and text of his written submissions. 16 The submissions of the appellant purportedly addressed the reasons for decision of the Tribunal and did not at least explicitly purport to address the reasons for judgment of the Federal Magistrates Court. This reflects an unfortunate trend in the submissions of unrepresented appellants in migration cases. I will address below those written submissions of the appellant in any event, and by reference to the issue headings as formulated by the Minister. 17 On any fair and reasonable analysis of the reasons for judgment of Barnes FM, her Honour did not fail to take into account relevant considerations or evidence relating to the contention raised by the appellant that he would experience harm whenever he might be returned to India. The appellant was in that regard a member of the TMC, which on the evidence before the Tribunal is a political party that exists in West Bengal, and not the remainder of India. In any event, at the Tribunal hearing the appellant asserted that the reason why relocation was not possible was because of his upper middle class origins, language and ethnicity, which generalities of description were inferentially or inherently addressed in the Tribunal's reasons. In those circumstances, the purported case that the Tribunal failed to take into account a relevant consideration was not made out. 18 In the appellant's written submissions, he also contended that the Tribunal failed to consider whether relocation was reasonable, since the police could still find him anywhere in India in relation to the alleged false charges. However that submission failed to recognise that the Tribunal rejected that claim for reasons which included the circumstance that the appellant had been able to live unhindered with relatives in Mumbai and that his departure to Australia was unhurried despite the receipt of a visitor's visa. 19 The appellant also asserted that the Tribunal failed to consider that the sporadic political violence it was said to have acknowledged as having occurred was a 'threat to life or liberty [or] significant harassment'; however the Tribunal did consider whether the violence, which it accepted occurred, would constitute serious harm within the meaning of s 91R(1)(b) of the Act and rejected the suggestion that it would do so. 21 The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act , SZBDF , and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO . I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B.


case_text: The appellant also complained that he was not given an opportunity to respond to the Tribunal's concerns about the Dum Dum Trinamool Yuba Congress letter which he tendered; however, as Barnes FM observed, s 422B of the Act , SZBDF , and SZEGT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1514 at [29] (Edmonds J) constituted an answer to that suggestion. The Minister submitted that even if that were not the case, there was no denial of procedural fairness established, since the Tribunal did not find the letter to have been fabricated and thus there was therefore no error of the kind identified by a Full Federal Court in WACO . I believe it is unnecessary to consider the findings made in WACO in the light of the operation of s 422B.


case_text: The appellant asserted that the Tribunal fell into error by according no weight to the Dum Dum Trinamool Yuba Congress letter without any investigation on its part; however although the Tribunal has of course investigative powers under s 424 of the Act , it is not a condition to the exercise of its statutory power that it does so, and in that regard I was referred by the Minister to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 78 ALJR 992 at [43] (per Gummow and Hayne JJ). 24 The appellant's next contention was that the following findings were not open on the evidence before the Tribunal: (a) the Tribunal's adverse finding on credibility and the rejection of all of the appellant's claims; and (b) its further finding that the successful campaigns for election candidates did not make him a target for CPIM supporters.


case_text: In relation to the first matter above, the Tribunal did not make any adverse credibility finding or reject each of the appellant's claims; the Tribunal gave the appellant the benefit of the doubt on a number of matters. Nonetheless, assessments as to credibility are matters essentially for the Tribunal to undertake. In support of that proposition, the Minister referred the Court to Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407. 26 In relation to the second matter above, the Tribunal based its conclusion on the evidence that the appellant gave and in the course of which he described the activities he undertook under the instructions received from others. I find that the Tribunal's finding that the appellant's ' activities demonstrate that he would not be perceived by his adversaries as having political influence or profile ' was open on the evidence. 27 Contrary to the assertion advanced by the appellant in ground 9 of the notice of appeal, the Tribunal did not find that the appellant could evade harm by not being politically active. Rather, as already outlined, the Tribunal found that he had not previously been subjected to persecution and did not have a profile likely to attract persecution in the future. Moreover the Tribunal established that the violence from the CPIM was sporadic, not state sponsored, and further that there was in place effective state protection.