case_text: SZLLY v Minister for Immigration and Citizenship [2009] FCA 185 ; (2009) 107 ALD 352 at [19] , Perram J observed that: The Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553 establishes three propositions which are pertinent. First, the invitation contemplated by section 425 must not be a hollow shell or an empty gesture: at [33]. Second, another way of putting the first requirement may be to say that the tribunal must provide a 'real and meaningful' invitation: at [37]. Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37]. Like Perram J in SZLLY, I am bound by the Full Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 ; (2003) 128 FCR 553. Even if it were open to me to embark upon a debate as to the correctness of that decision and. constituting the appellate division as a single judge I do not consider that it is open, the circumstances of this case do not give rise to a violation of the hearing invitation requirement in s 425. A hearing date was reasonably offered and no advantage was taken of it. Even objectively, there is no basis for apprehending a breach of s 425 based on circumstances prevailing at the time but unknown to the Tribunal. There was no obligation on the part of the Tribunal, that hearing having long since past, even to consider whether or not to defer the making of a decision pending the taking of oral evidence from the witness named in the Appellant's letter of 17 October. The position might have been different, for example, had there been an explanation in the letter of 17 October as to why that witness had not hitherto been available and details given of exactly the evidence the witness proposed was to give. What remains then is a complaint concerning the rejection by the Tribunal of an information report regarding the kidnapping of the Appellant's brother. It is not apparent that this ground was one pressed in the proceeding before the Federal Magistrate, although that might just perhaps be a matter of inadequacy of command of language on the part of an Appellant who has some knowledge but an incomplete knowledge of English. It is important though to remember that the jurisdiction exercised by this Court is appellate, not original, in respect of matters such as this. The short answer, in any event, to the second ground of appeal is that, having regard to the Tribunal's reasons, it was open to the Tribunal to reach the views that it did. The Tribunal is not obliged on the strength of a review application alone to be satisfied in terms of a protection obligation existing. It is for an applicant to put such material as he or she is able to engender that state of satisfaction. That ability includes an ability on request to attend at a hearing. It also extends to making a response to s 424A request for information. The appellant did not take advantage of either of these opportunities. The views that the Tribunal reached were reasonably open to it on the basis of the material that it had.


case_outcome: cited

case_text: 2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth ("the Attorney-General") and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, "the Minister") for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General's Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General's Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405.


case_title: Re: Bienstein and Minister for Justice and Customs [2004] AATA 895


case_text: 2003, the applicant, Ms Bienstein, made a separate request to each of the Attorney-General for the Commonwealth ("the Attorney-General") and the Minister for Justice and Customs (now the Minister for Home Affairs) (in each case, "the Minister") for access to documents. The Attorney-General and the Minister each purported to transfer the request to the Attorney-General's Department, pursuant to s 16 of the FOI Act. Ms Bienstein applied to the Tribunal for review of a deemed decision, pursuant to ss 55 and 56 of the FOI Act, on the basis that, at the expiration of the requisite period from the making of each request, there had not been a decision. In each case, the Tribunal determined that it did not have jurisdiction to deal with the application for review. See Re: Bienstein and Attorney-General (Cth) [2004] AATA 896 and Re: Bienstein and Minister for Justice and Customs [2004] AATA 895. The Tribunal concluded that each request for access to documents had been transferred validly to the Attorney-General's Department. Ms Bienstein appealed to this Court from those two decisions. She was successful on appeal. The decision of the Tribunal on each of the applications for review was set aside and each of the cases was remitted to the Tribunal to be heard and decided again. See Bienstein v Attorney-General [2007] FCA 1174 (2007) 162 FCR 405. The appellant's amended notice of appeal contained several other questions, in the following terms: Whether a decision deemed by the FOI Act to have been made "for the purpose of making an application to the Tribunal" may be taken in Tribunal proceedings as deemed for a different or an additional purpose. Whether an FOI request directed to a Minister may lawfully be transferred or referred for processing to the Minister's Department and whether the effect of a valid transfer is to free the transferor agency or Minister of the duty to furnish to the applicant notices of acknowledgment and decision in accordance with s 15 FOI Act. What, in a FOI proceeding where the adequacy of searches is in issue, constitutes compliance with s 37 AAT Act? What duties did the decision in Bienstein v Attorney-General and Justice Minister [2007] FCA 1174 settle on: (a) lawyers who appeared for the Respondents in that proceeding and their instructor(s); (b) the Attorney-General's Department and the Departmental Officer in possession of the purportedly transferred requests; (c) the Respondents; (d) the Tribunal; (e) the Department of the Prime Minister and Cabinet, where the FOI legislation is administered by the Privacy & FOI policy Branch and the responsible Minister, being Cabinet Secretary, Senator Faulkner; To what extent is the Tribunal competent to enforce the Applicant's rights under s 11 FOI Act in applications brought on the basis of the Respondent's failure to furnish a timely decision on the request. Whether each government agency and Minister has a duty under the FOI Act to establish procedures consistent with that legislative scheme for the receipt and processing of requests in and by the said agency or Ministerial office and for the receipt and implementation of consequential Tribunal and Court decisions. These questions are posed in a way that makes them academic. They are in general terms, rather than terms that are specific to the decision of the Tribunal. A question of law on which an appeal can be brought pursuant to s 44(1) of the AAT Act is a means by which a party to a proceeding before the Tribunal may invite the Court to find that the Tribunal has made an error of law affecting its decision. Section 44(1) of the AAT Act confers on the Court, as part of the judicial power of the Commonwealth under Ch III of the Constitution , jurisdiction to deal with appeals on such questions. The Court does not have power to give general expositions of the law on various subjects, even if those subjects are in some way related to a decision of the Tribunal. Thus, the Court cannot provide the sort of advice that is apparently sought by each of questions 3, 4, 5 and 6. The general effect of questions 1 and 2 was narrowed by Ms Bienstein's oral arguments to the question whether the Tribunal had power to order the Attorney-General and the Minister to make decisions on Ms Bienstein's requests for access to documents. That question has been dealt with above. To the extent to which questions 1 and 2 in the amended notice of appeal are in broader terms, they cannot be dealt with. The Tribunal's ultimate finding The Tribunal's decision of 13 June 2008 was to affirm the decision deemed to have been made by each of the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. This decision was based on a finding that all reasonable steps had been taken by each of the Attorney-General and the Minister to find the documents Ms Bienstein sought and that, except for the documents that had been located and dealt with previously, the documents to which Ms Bienstein requested access did not exist. By s 24A of the FOI Act, a finding in these terms justifies a refusal of a request for access to a document. Whether all reasonable steps had been taken, and whether documents exist, are questions of fact. Findings of fact on those questions can only be overturned in this Court if there is some error of law on the part of the Tribunal that leads to a conclusion that the finding is not a proper result of the exercise of the Tribunal's powers. Ordinarily, a finding of fact of this nature will mean that, even if there are errors of law on the part of the Tribunal, if those errors do not taint the findings of fact under s 24A of the FOI Act, the Tribunal's decision will stand.


case_text: 31 October 2007, the Tribunal gave directions, requiring the Attorney-General and the Minister to file and serve a summary of all the evidence detailing the searches conducted and any other documents on which they intended to rely at the hearing. The Tribunal scheduled a directions hearing for 26 November 2007. By letter dated 12 November 2007, Ms Bienstein submitted that the directions were inconsistent with the law. She submitted that the Tribunal should have directed that "a decision be furnished and a section 37 statement be filed and served in support of that decision." Ms Bienstein sought amendment of the directions accordingly. There was argument about this issue at a telephone directions hearing on 26 November 2007. Following that, on 4 January 2008, the Tribunal published a decision expressed in the following terms: The Tribunal has decided that: (1) it has no power to direct the Attorney-General or the Justice Minister to make a decision; (2) it has jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Justice Minister i.e. decisions to refuse Mrs Bienstein's request for access to documents; (3) the Attorney-General and Justice Minister have a duty to comply with s 37(1) of the AAT Act and, under that section, the time within which they must do so to is extended until 1 February 2008; and (4) it is under no obligation to order that the directions hearing be recorded. At the same time, the Tribunal gave written reasons for that decision. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 7. On 4 February 2008, Ms Bienstein filed in this Court a purported appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") in respect of this decision of the Tribunal. That proceeding became number VID 65 of 2008. Ms Bienstein subsequently discontinued it, probably as a result of becoming aware of authorities such as Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80 , in which it has been held that an interlocutory ruling or decision by the Tribunal is not necessarily a "decision" from which an appeal lies pursuant to s 44 of the AAT Act.


case_text: Tribunal proceeded to deal with the two applications for review. In the course of managing them, the Tribunal made a further interlocutory decision on 23 April 2008, as to the directions to be given, declining to accept submissions of Ms Bienstein, who sought detailed directions to each respondent as to the nature of the searches that each should undertake. See Bienstein v Attorney-General (Commonwealth of Australia) [2008] AATA 330. On 5 May and 6 June 2008, the Tribunal conducted a hearing. On 13 June 2008, the Tribunal published its decision, affirming the decisions deemed to have been made by the Attorney-General and the Minister to refuse access to documents as requested by Ms Bienstein. The Tribunal found that each of the Attorney-General and the Minister had taken all reasonable steps to find documents meeting the terms of Ms Bienstein's requests. The Tribunal was satisfied that no documents, other than those that had already been found, existed. On 16 July 2008, Ms Bienstein filed a notice of appeal in this Court in respect of that decision. That appeal became proceeding number VID 563 of 2008. On 2 January 2009, Ms Bienstein filed an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), which became proceeding number VID 1 of 2009. Originally, Ms Bienstein named as respondents to that proceeding Malcolm Bennett, the FOI Director of the Attorney-General's Department, as well as the Attorney-General and the Minister. By consent on 3 February 2009, it was ordered that Mr Bennett be removed as a party to the proceeding. The object of the proceeding was to obtain an order that each of the Attorney-General and the Minister make a decision on Ms Bienstein's request for documents and provide Ms Bienstein with notice of the decision. On 28 January 2009, the Attorney-General and the Minister filed a notice of objection to the competency of that proceeding, contending that the application was filed outside the time limits set out in s 11(3) and (4) of the ADJR Act, and that the Attorney-General and the Minister were not under any duty, and did not have any power, to make decisions under the FOI Act, and consequently there was no failure to make decisions they had a duty to make, within s 7 of the ADJR Act. Proceedings numbers VID 563 of 2008 and VID 1 of 2009 were heard together. The legislation Section 11 of the FOI Act provides: (1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to: (a) a document of an agency, other than an exempt document; or (b) an official document of a Minister, other than an exempt document. (2) Subject to this Act, a person's right of access is not affected by: (a) any reasons the person gives for seeking access; or (b) the agency's or Minister's belief as to what are his or her reasons for seeking access.


case_outcome: applied

case_text: authority be needed to support the proposition, it is found in Cashman & Partners v Secretary, Department of Human Services and Health [1995] FCA 1730 ; (1995) 61 FCR 301 at 306. In that case, the recipient of a request for access to documents had not made a decision within the 30 day period. The person making the request applied to the Tribunal for review of the deemed refusal. The Tribunal directed the recipient of the request to make a decision. The recipient did not comply with the direction, but filed an affidavit identifying documents as falling within the request. The Tribunal made a decision setting aside the deemed decision to refuse access by consent. It remitted the matter to the recipient of the request with a direction to grant access to certain designated documents. The question then arose as to whether the Tribunal should make a recommendation, pursuant to s 66 of the FOI Act, for the payment of costs of the proceeding in the Tribunal. The Tribunal declined to make a recommendation. The proceeding in the Court was an appeal from the decision to decline to make a recommendation for the payment of costs. On the appeal, at 305, Beazley J found that the Tribunal had identified what she described as "the second decision" as the relevant decision for its review. Her Honour then proceeded at 306 to hold that the relevant decision was the deemed decision refusing to grant access to the documents, not the decision to make the affidavit setting out the documents access to which was granted. In doing so, her Honour declined to distinguish Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985) on the basis that, in that case, there had been an actual decision to refuse access to documents. Her Honour said: I do not consider the ground upon which counsel sought to distinguish Sweeney J's decision in Hounslow to be a relevant point of distinction. An applicant is in no different position in the case of a deemed refusal than in the case of a considered refusal. In each case, the applicant is not granted access to documents. In each case, the applicant has the right to apply to the Tribunal for review of the decision although the relevant factors on review will, of course, be different. In my opinion, subject to the respondent's s 56(5) submission, Sweeney J's decision in Hounslow applies to this case. It is not entirely clear what her Honour meant by the proposition that the relevant factors on review will be different as between an actual decision to refuse access and a deemed decision to refuse access. In each case, the task of the Tribunal will be to make the correct or preferable decision on the material before the Tribunal. Cashman is clear authority for the view that the Tribunal's task in the case of a deemed decision to refuse access to documents is no different from its task in the case of an actual decision to refuse access.


case_title: Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80


case_text: proposition disposes of another of Ms Bienstein's arguments in the present case. That is the argument that the making of a decision would have given the Tribunal the opportunity to look at the reasons for a decision to see if they complied with the FOI Act. In reviewing a decision of any kind, the function of the Tribunal is not to decide whether the reasons given by the original decision-maker are correct or adequate or appropriate. The task of the Tribunal is to make its own decision and to do so by starting afresh. This has been recognised since Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179 ; (1979) 46 FLR 409 at 419 per Bowen CJ and Deane J. A comparison of terminology between different statutes, or even between different provisions in the same statute, can sometimes be useful in determining the meaning of a statutory provision. Differences in terminology are not necessarily a reliable indicator of an intention to produce different results. There is a clear purpose behind the use of the words "for the purpose of enabling an application to be made to the Tribunal" in s 56(1) of the FOI Act. That purpose is to make it clear that it is not necessary for a person affected by a deemed decision to refuse access to documents to go through the internal review process for which s 54 provides. In the case of an actual decision to refuse access to documents, internal review under s 54 would be a prerequisite to an application to the Tribunal for review under s 55. In the case of a deemed decision to refuse, Parliament has obviously taken the view that it would be pointless to waste the time of a person requesting access to documents by requiring him or her to seek internal review of a decision that had not in fact been made. By contrast, the effect of the words "for all purposes of this Act" in s 30A(1B) would be to subject a deemed decision to refuse to remit an application fee to the same requirement of internal review as would be imposed in the event of an actual decision refusing to remit the fee. A comparison of these two provisions with s 25(5) of the AAT Act is of little value. The AAT Act is a general application. The specific provisions of the FOI Act would take precedence over the general provisions of the AAT Act in the event of conflict. Given that the specific words of both s 56(1) and s 30A(1B) of the FOI Act have identifiable purposes, any attempt to attach significance to the absence of qualifying words in s 25(5) of the AAT Act cannot succeed. The argument that s 58(1) of the FOI Act gives the Tribunal power to review a failure to make a decision is not correct. Section 58(1) constitutes the conferral on the Tribunal of wide powers in a proceeding to review a decision or, as in the present case, a deemed decision. The conferral of a power "to review any decision that has been made" does not amount to the conferral of a power to review a failure to make a decision. For the Tribunal to attempt to review a failure to make a decision would be a distraction from the task of the Tribunal, which is to make the correct or preferable decision, on the material before it, in relation to the request for access to documents. It is not to the point to ask why any Minister would ever make a decision if there is no obligation to do so. Doubtless, many Ministers do make decisions, because they see it as important to respond to requests for access to documents, rather than to allow the responsibility to be undertaken by the Tribunal on a review of a deemed decision refusing to grant access to documents. The Tribunal was correct to determine, in its decision of 4 January 2008, that it had no power to direct the Attorney-General or the Minister to make a decision, but had jurisdiction to review the decisions deemed to have been made by the Attorney-General and the Minister to refuse Ms Bienstein's requests for access to documents. As the Tribunal recognised at [29] of its reasons for this decision, it had a power under s 42D of the AAT Act to remit a decision for reconsideration. If it had chosen to exercise this power, and remitted the relevant deemed decision to each of the Attorney-General and the Minister, each of them might have been motivated to make a decision. It is by no means clear that this would have occurred, because the advocate representing both the Attorney-General and the Minister had made it clear to the Tribunal at a directions hearing that neither proposed to make a further decision. This may have been a reason for the Tribunal refraining from exercising its power to remit under s 42D. In any event, that power is a discretionary one. The exercise of a discretion conferred on the Tribunal is immune from appeal to this Court unless it raises a question of law. The exercise of the discretion by the Tribunal in the present case does not raise a question of law. Similarly, the power given to the Tribunal by s 56(6) of the FOI Act to allow further time to deal with a request for access to documents involved a discretionary power. Neither that subsection nor s 56(5) of the FOI Act authorises the Tribunal to direct the making of a decision. As the Tribunal said at [31] of its reasons for decision of 4 January 2008: Section 56(5) does not authorise the Tribunal to direct an agency or Minister to make a decision. It permits it only to facilitate the making of a decision should the agency or Minister wish to do so. Such further decisions are not infrequent and assist in narrowing the documents that are truly in issue between the parties. For these reasons, the Tribunal was correct to hold that it did not have power to direct either the Attorney-General or the Minister to make an actual decision on Ms Bienstein's request for access to documents. The Tribunal dealt with the deemed decision to refuse such access, as it was obliged to do. Bias In argument, Ms Bienstein raised the question of bias on the part of the Tribunal. Initially, she said that bias was not advanced as a ground for overturning the Tribunal's decision, but was advanced on the basis that, if the decision were to be overturned on other grounds, the Tribunal should be reconstituted upon the case being remitted to it. In reply, Ms Bienstein said that she wished to raise the question of bias as a separate ground. She made it clear that she was not alleging bias against her. Rather, she was alleging that the Tribunal had either an actual or an apprehended predisposition to protect Ministers from having to comply with requests for access to documents.


case_title: Hounslow v Department of Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Sweeney J, 20 December 1985)


case_text: Mr Steward for Orica drew attention to obstacles he maintained the Commissioner will need to overcome in order to establish some of the alternative formulations of his case. However, I do not regard any of the new bases upon which the Commissioner desires to proceed as bound to fail. Because I will in due course have to hear full argument on the various points, I do not propose to say any more about the Commissioner's prospects of success on the various alternatives. The argument on the merits of the proposed new paragraphs occupied only 40 minutes or thereabouts. It is more appropriate that the merits be ruled on after more sustained submissions at trial. In this connection Mason CJ's observations in Hepples v Federal Commissioner of Taxation [1992] HCA 3 ; (1992) 173 CLR 492 at 497 are pertinent: The provisions of s 160M(5)(6) and (7) ... and provisions to which they are related are extraordinarily complex. They must be obscure, if not bewildering, both to the taxpayer who seeks to determine his or her liability to capital gains tax by reference to them and to the lawyer who is called upon to interpret them. 12 Other parts of the Statement were attacked on the basis of form or lack of particularity. These complaints are best dealt with, not by disallowing the amendments or giving leave subject to the Commissioner accommodating the complaints, but by Orica requesting clarifications or particulars. 13 Many of the amendments and additions to the "Facts" paragraphs of the Statement are useful clarifications and particularisations which will assist the parties and the Court more readily to understand the way the Commissioner's case is put.


case_text: I have taken into account the discretionary considerations Orica has relied on, in particular the Commissioner's failure to provide an explanation for the delay in seeking to amend, and Orica's ongoing liability to general interest charge. On the other hand, I bear in mind what was said in the joint judgment in Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 , and the desirability of permitting a litigant to raise the issues he wishes to pursue even though, by doing so at a later stage, it causes inconvenience and expense to his opponent. I have also taken into account the complex nature of the provisions of Part IIIA that are involved in the case. See [11]. Unlike some of the cases relied on by Orica, the amendments are not sought shortly before trial. The Commissioner has always contended that Orica's rights under the Distribution Agreement are an asset for the purposes of Part IIIA , that Orica disposed of that asset in circumstances where there was a capital gain, and that the disposition of that asset was a taxable event. The proposed changes do not alter that stand. Rather they amplify the ways in which the Commissioner will contend that the events that happened, most of which are not controversial, gave rise to a taxable event. In this connection I note that the "Facts" paragraphs of the Statement ([1] to [29]) are not significantly altered. Apart from the added particularisations to which I have referred, and cosmetic changes to make certain paragraphs accord more closely with the underlying documents, only pars 17 and 20A are new. Those two paragraphs are, however, of no particular significance, and neither of them will disclose to Orica anything of which it was not already well aware. 15 I will give the Commissioner leave to file the Statement. However, he may wish to consider whether, in view of the new paragraphs dealing with the separate asset ([38A] to [38E]), par 33A should retain its present form. 16 The Commissioner must pay Orica's costs of the motion notice of which was filed on 21 April 2008. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 17 June 2008 Counsel for the Applicant: S Steward Solicitor for the Applicant: Mallesons Stephen Jaques Counsel for the Respondent: M Wheelahan SC and F Alpins Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 May 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/906.html


case_outcome: distinguished

case_text: The duty of a judicial officer to provide reasons for decisions made, and the content of that duty, were best articulated by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. His Honour there initially addressed the obligation to provide reasons and then the purpose of providing reasons. His Honour, at 441 2, thus observed: The obligation to provide reasons for decision. It is well settled that a judge or magistrate at first instance in particular cases has an obligation to provide reasons for the judgment given.... That obligation arises as a matter of judicial duty ... but only as a normal, not universal incident of the judicial process.... It does not arise from legislation as it does in the field of administrative law: see, for example, Administrative Decisions (Judicial Review) Act (Cth) s13, Administrative Appeals Tribunal Act (Cth) s28, s37 and s43. ... Despite the fact that the obligation on courts to provide reasons may have a different origin, the former being an incident of judicial duty and the latter being a legislative requirement, there is no reason in principle or as a matter of policy why the content of reasons for both types of decision should not be similar, if not the same: they essentially serve the same purpose. The purpose of providing reasons for decision Perhaps the primary reason for an obligation on courts to provide reasons is the fact that a party seeking an appeal may generally only appeal where the trial judge has made an error of law. The absence of reasons or insufficient reasons may not allow an appeal court to determine whether the trial judge's verdict was or was not based on an error of law or an appealable error. However, the provision of full reasons has other benefits. A failure to provide sufficient reasons can and often does lead to a real sense of grievance that a party does not know or understand why the decision was made.... This court has previously accepted the proposition that a judge is bound to expose his reasoning in sufficient detail to enable a losing party to understand why they lost.... One reason is obvious: if decisions cannot be understood, a feeling of injustice can arise and, as Justice Brennan of the United States Supreme Court (see Huxtable, "A Question-Mark Over The Adversarial System" (Dee 1995) 30 (No 11) Australian Lawyer 17) recently perhaps overstated: "...Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." Aside from the sense of injustice which can be caused, there is a broader interest in maintaining public acceptance of judicial decisions and the judicial system. The requirement to provide reasons can operate prophylactically on the judicial mind, guarding against the birth of an unconsidered or impulsive decision. It enhances judicial accountability. The provision of reasons has an educative effect: it exposes the trial judge or magistrate to review and criticism and it facilitates and encourages consistency in decisions. The educative effect does not stop with judges but extends to other lawyers, to government and to the public. Decisions of courts usually influence the way in which society acts and it is trite to point out that it is better to understand why one should act in a particular way. The provision of adequate reasons will save time for appeal courts both in reducing the number of appeals and in reducing the time taken in considering any appeals. Thus, any increase in judicial resources required at the trial level should be countered by a reduction in judicial resources required at the appellate level. ... 22 The position taken by the Respondent Minister, however, was essentially threefold, namely that: (i) the observations of Meagher JA in Beale as to the content of adequate reasons for a decision at first instance, do not provide an appropriate " touchstone " as to those matters which the Federal Magistrate was obliged to address in the present proceedings; (ii) the reasons in fact provided by the Federal Magistrate did adequately explain the decision reached; and (iii) in the event that there was a deficiency in those reasons, this Court, as a matter of discretion, should decline to allow the appeal if satisfied that the decision of the Federal Magistrate could be supported -- albeit for reasons not disclosed by the Federal Magistrate but which can be ascertained by this Court. 23 The first of those submissions must readily be accepted. There is a fundamental distinction between the responsibilities of a trial judge entrusted with the function of making findings of fact (as in Beale ) and the responsibilities of a judge conducting judicial review. Central to that distinction is that in judicial review proceedings the factual merits of the decision under review are left to the decision-maker and the court conducting the judicial review is confined to a review of the legality of the decision reached. 24 That distinction necessarily dictates a reconsideration of the approach set forth by Meagher JA in Beale. The Federal Magistrate's task in the present proceedings was to review the decision of the Refugee Review Tribunal. That was essentially a task of considering the terms of the relevant legislation and reviewing the conclusions expressed by the Tribunal as against the findings of fact and reasons provided. And that task is confined by s 476 of the Migration Act 1958 (Cth). 25 Those matters which a Federal Magistrate, it is considered, should address in reasons for decision will depend upon the factual and legal issues involved. In those circumstances where the ground of judicial review being relied upon is a denial of procedural fairness, it may be appropriate for the Federal Magistrate to consider evidence not before the Tribunal, but evidence that is directed to the manner in which the Tribunal proceeded. That evidence may be contested and it may be necessary to make findings of fact. Where, however, the ground of review is said to be an error of law, it may be unnecessary to go beyond the findings of fact made by the Tribunal and the legislative provisions being applied. 26 Whatever the ground of review, however, the reasons of the Federal Magistrates Court must be sufficient to explain to both the litigant and others the basis upon which that Court proceeded and the reasons why the application to review the decision of the Tribunal is either to be dismissed or why the decision is said to be wrong in law. Reasons do not adequately address the grounds of review sought to be resolved if the litigant -- or this Court -- is left to speculate as to what it was that the Federal Magistrate had in mind when he reached the conclusions that formed the final decision. 50 It should finally be noted that the adequacy of reasons provided must necessarily be determined in the context of each individual case. As concluded by Meagher JA in Beale , supra , " no mechanical formula can be given in determining what reasons are required ". The adequacy of the reasons provided by the Federal Magistrates Court must also be necessarily influenced by the volume of decisions (especially migration decisions) resolved by that Court. 51 The orders of the Court are: 1. The appeal be allowed. 2. The orders of Howard FM in the Federal Magistrates Court of Australia on 17 January 2008 be set aside. 3. The proceedings be remitted to Howard FM for determination in accordance with law. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 22 May 2008 Counsel for the First Appellant: The First Appellant appeared in person Counsel for the Second Appellant: The Second Appellant did not appear Solicitor for the First Respondent: Z McDonald (DLA Phillips Fox) Date of Hearing: 7 and 8 May 2008 Date of Judgment: 22 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/735.html


case_outcome: followed

case_text: In Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J helpfully provided a further reminder as to the value that reasons serve in the administration of justice. His Honour there observed, at 634: A matter which I have not mentioned, which is another reason for requiring the stating of reasons, is this: every litigant who loses his action, whether it be in the civil or criminal jurisdiction, is a disappointed litigant. That is inevitable and is a logical result of our judicial system. There is all the world of difference between a disappointed litigant and a disturbed litigant. In the latter category come litigants who cannot understand why the decision went against him. In this case the appellant would be justified in feeling disturbed as he presumably does because he has brought this appeal. He is disturbed that justice did not appear to him to have been done. It is of the utmost importance that Her Majesty's subjects should have faith in our judicial system. By far the greatest number of civil and criminal cases come before the lower court. One should not draw distinctions between courts but it is of fundamental importance that the lower courts, which deal with so much work and with whom the average citizen has greater contact, should maintain respect for and faith in the judicial system.


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 , 168 ALR 407

case_text: Nor would a reader be better informed as to the finding made as to credibility or the basis upon which it was made. It may readily be accepted that findings of credibility are usually findings of fact which are findings par excellence within the province of the Tribunal and that no detailed reasons need be given as to why a particular witness was not believed: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67] , 168 ALR 407 at 423 per McHugh J. In the present proceedings, however, little is disclosed other than that credibility apparently played a part in the finding being alluded to. 33 A further consideration taken into account in concluding that the reasons of the Federal Magistrate in the present proceedings do not adequately explain the basis upon which his Honour proceeded is the very fact that the grounds advanced were within a comparatively limited compass. Frequently it may be found that a challenge to a decision of the Refugee Review Tribunal is a challenge to substantially the entirety of the findings made by that Tribunal. In the present proceedings, the now Appellants attempted to confine the grounds upon which review was sought. The more confined the grounds, the easier it may be to address the reasons why they do or do not prevail. 34 The decision of the Federal Magistrate essentially sets forth a series of conclusions with little explanation, other than concurrence being expressed with the decision of the Tribunal. 35 Although it has been concluded that the reasons provided by the Federal Magistrate did not adequately set forth the basis upon which his Honour proceeded or the decision in fact reached, it is considered that any inadequacy in those reasons does not provide any basis for concluding that the Federal Magistrate was biased or otherwise prejudiced against the Appellants. 36 The final ground of review has not been made out and is rejected. 37 The inadequacy in the reasons provided is a basis upon which an appeal could be allowed. 38 The Respondent Minister, however, has submitted that that course should be resisted. It is contended that such reasons as have been provided, albeit inadequately, do provide a sound basis upon which it should be concluded that an order remitting the proceedings to the Federal Magistrate for further consideration is but an exercise in futility. It is contended that in all likelihood, the Federal Magistrate would reach the same conclusion albeit for reasons more expansively provided.


case_text: The Respondent Minister in the present appeal accepted that the Federal Magistrate was under an obligation to provide reasons for his decision. It is thus an error of law for a Federal Magistrate to fail to give reasons for dismissing an application to review a decision of the Refugee Review Tribunal: SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500 at [16] per Jacobson J. Albeit in a different statutory context, it has also been recognised that a Federal Magistrate should give sufficient reasons for reaching a conclusion that an application should be summarily dismissed: Penhall-Jones v State of New South Wales [2006] FCA 934 at [25] . Tamberlin J there said that the reasons: ... do not have to be elaborate or excessively detailed, but the touchstone is that the reasons must indicate to the parties why the decision was made in order to allow them to exercise such rights as may be available in respect of that decision ...


case_title: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 , 235 ALR 609

case_text: No explanation was provided in the present appeal as to why the alleged breach of s 424A was not relied upon before the Federal Magistrate. Counsel for the Respondent Minister correctly submitted that the new ground had no prospects of success. The now Appellants' written submission sought to expand the ground by contending that there should have been notification and an opportunity to make submissions given " the relative importance of the information to the reasoning process ". Section 424A(1) , however, imposes no obligation upon the Tribunal to allow an applicant an opportunity to comment on its reasoning process or how it has proceeded to assess particular pieces of information advanced before it for consideration: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ there held: [18] ... if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information": does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc. If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. 48 It is thus considered that the additional ground sought to be raised is without merit and that leave to amend to raise an alleged breach of s 424A(1) should be refused. 49 It is concluded that the reasons for decision of the Federal Magistrates Court fail to adequately address the issues before that Court for resolution. The Appellants, it is considered, would justifiably be left with a " real sense of grievance " that they did not know why the Federal Magistrate rejected their claims.


case_title: SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1500


case_text: So understood, objection was taken on behalf of the Respondent Minister. Leave to amend requires an adequate explanation to be provided as to why the new ground was not previously relied upon before the Federal Magistrate and may only be granted if the new ground has some merit: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] [48]; SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38] [41]; SZLBJ v Minister for Immigration & Citizenship [2008] FCA 609.


case_text: On 4 April 2007 the now Appellants applied to the Federal Magistrates Court for a review of the Tribunal's decision. That Court, in what appears to be an ex tempore judgment, dismissed the application on 17 January 2008: SZKLO v Minister for Immigration & Citizenship [2008] FMCA 48. 5 The Appellants now appeal to this Court. 6 The Grounds of Appeal , in summary form, assert that: (i) the " Federal Magistrate failed to address the real issues raised by the Applicants in the Original Application "; (ii) the Federal Magistrate erred in the manner in which that Court dealt with the submissions before it and " took 'a least path of resistance' to uphold in favour of the Respondent "; and (iii) the Federal Magistrate was manifestly prejudiced against the claims being advanced.


case_title: SZLBJ v Minister for Immigration & Citizenship [2008] FCA 609


case_title: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158


case_outcome: considered

case_text: The relationship between s 157 of the TPA and the principles concerning legal professional privilege were considered by the Full Federal Court in Arnotts Limited v Trade Practices Commission (No 1) (1989) 21 FCR 297. In that case, the Full Court held that it could refuse to make an order under s 157(2) of the TPA in respect of a document where it considered that the conditions giving rise to legal professional privilege were satisfied in respect of the document or part of it, and privilege was not waived. The Full Court held that it had power to refuse to order disclosure in exercise of the statutory discretion conferred by s 157(3). It also held that the intention disclosed by s 157 is that a respondent is to be given fair treatment in the sense that it is to be given documents which the ACCC has in its possession and which would tend to establish or support the respondent's case. The Full Court considered that where a document tends to impeach the ACCC's case, it also tends to establish the case of the respondent. Such documents would therefore fall within the ambit of the section. The Full Court further observed that a document which might merely suggest some line of enquiry which could be of assistance to the respondent in conducting its case, was not a document which "tends to establish" that case. The Full Court observed that it could require the documents to be produced for inspection and, having inspected them, make an order for disclosure subject to conditions. The Full Court considered that, by on the one hand qualifying the scope of the ACCC's common law privilege, but on the other hand affording the ACCC an opportunity to demonstrate prejudice (or some other reason for non-disclosure) in a particular case, the legislative scheme contained in s 157 of the TPA achieved an appropriate balance of the respective interests involved.


case_text: In Australian Competition & Consumer Commission v FFE Building Services Limited (2003) ATPR 41-967 at [59], Wilcox J summarised, in a manner accepted by the parties, the position in relation to s 157 of the TPA and legal professional privilege, in these terms: It follows that I should be guided by the following principles: (a) the Court has a discretionary power, under s 157(2) of the [TPA], to order production of documents notwithstanding that they ordinarily would be protected by legal professional privilege; (b) nonetheless, legal professional privilege is not abrogated by s 157 ; the existence of the privilege is a factor to be taken into account in considering the proper exercise of the Court's discretion; (c) in exercising its discretion, the Court should take into account the 'general intention disclosed by s 157 '; that is, ' that a corporation is to be given fair treatment in the sense that it is to be given documents which Commission has and which would support the corporation's case', including by tending to impeach ACCC's case . (Emphasis added.) 14 In FFE Building Services (2003) ATPR 41-967 at [50], Wilcox J referred to the decision in the House of Lords in Rush & Tompkins Ltd v Greater London County Council [1989] 1 AC 1280, where the House of Lords considered the principles relating to the privilege attaching to documents which came into existence for the purpose of negotiating settlement. Lord Griffiths, with whom the other members agreed, said at 1301: It seems to me that if those admissions made to achieve settlement of a piece of minor litigation could be held against [a litigant] in a subsequent major litigation it would actively discourage settlement of the minor litigation and run counter to the whole underlying purpose of the "without prejudice" rule. I would therefore hold that as a general rule the "without prejudice" rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It of course goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was achieved with that party. (Emphasis added.) In the present case it is not disputed that the relevant correspondence was in the cause of a genuine attempt to reach settlement. At 1305, his Lordship continued: If the party who obtains discovery of the "without prejudice" correspondence can make use of it at the trial ... [i]t may give some insight into his opponent's general approach to the issues in the case but in most cases this is likely to be of marginal significance and will probably be revealed to him in direct negotiations in any event. In my view this advantage does not outweigh the damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency available to all other parties to the litigation. In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties.


case_text: Counsel for Google sought to distinguish the principles underlying the decision in Queensland v J L Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146. In that case, the High Court at 155 referred to the injustice of shutting an applicant out from raising an arguable case and thereby precluding the determination of a live issue between the parties. The Court indicated that considerations of case management should not be allowed to outweigh the primary aim of allowing full and proper ventilation of an arguable case. I do not consider that the principle expressed by the High Court in that case should be displaced in the present case. A hearing date has not yet been fixed in this proceeding, and the matter is still at a relatively incomplete stage. I have taken into account the factors mentioned by Kirby J in J L Holdings 189 CLR at 171, and the fact that the ACCC has conceded that it will be responsible for any costs thrown away as a result of the amendments. I also see force in the consideration that the ACCC wishes, through the proposed amendments, to have a comprehensive determination in relation to Google's continuing method of operation and activity, and to meet the defence advanced by Google pursuant to s 85(3) of the TPA. 32 Taking all these matters into account, I am of the opinion that leave should be granted to the ACCC to make the proposed amendments. Although there may be some difficulties for Google as a consequence of the proposed changes, I am not persuaded that leave to amend should be refused on that basis. I therefore grant leave to amend and file the Second Further Amended Statement of Claim. Any costs thrown away as a result of the amendments shall be paid by the ACCC. The costs of this application to amend and file the Second Further Amended Statement of Claim will be reserved, because I think it is appropriate, given Google's opposition to the application, to revisit the question of costs after the matter has been more fully ventilated. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 21 August 2008 Counsel for the Applicant: Ms C. Adamson SC and Ms A. Seward Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the First Respondent: Mr D. Healey Solicitor for the First Respondent: Mallesons Stephen Jaques Counsel for the Second Respondent: Mr A. Bannon and Mr C. Dimitriadis Solicitor for the Second Respondent: Gilbert + Tobin Date of Hearing: 14 July 2008 Date of Judgment: 21 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1298.html


case_text: In FFE Building Services (2003) ATPR 41-967 at [50], Wilcox J referred to the decision in the House of Lords in Rush & Tompkins Ltd v Greater London County Council [1989] 1 AC 1280, where the House of Lords considered the principles relating to the privilege attaching to documents which came into existence for the purpose of negotiating settlement. Lord Griffiths, with whom the other members agreed, said at 1301: It seems to me that if those admissions made to achieve settlement of a piece of minor litigation could be held against [a litigant] in a subsequent major litigation it would actively discourage settlement of the minor litigation and run counter to the whole underlying purpose of the "without prejudice" rule. I would therefore hold that as a general rule the "without prejudice" rule renders inadmissible in any subsequent litigation connected with the same subject matter proof of any admissions made in a genuine attempt to reach a settlement. It of course goes without saying that admissions made to reach settlement with a different party within the same litigation are also inadmissible whether or not settlement was achieved with that party. (Emphasis added.) In the present case it is not disputed that the relevant correspondence was in the cause of a genuine attempt to reach settlement. At 1305, his Lordship continued: If the party who obtains discovery of the "without prejudice" correspondence can make use of it at the trial ... [i]t may give some insight into his opponent's general approach to the issues in the case but in most cases this is likely to be of marginal significance and will probably be revealed to him in direct negotiations in any event. In my view this advantage does not outweigh the damage that would be done to the conduct of settlement negotiations if solicitors thought that what was said and written between them would become common currency available to all other parties to the litigation. In my view the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties. 18 In any event, I consider that in this case there are cogent underlying reasons of principle, similar to those set out in Rush & Tompkins Ltd [1989] 1 AC 1280, to weigh the balance in favour of non-disclosure. This approach protects the important interests in encouraging negotiated settlements of disputes, ensuring that parties in such negotiations are frank and open with each other, and ensuring that parties communicate without apprehension that confidential (and potentially prejudicial) material may later be made public at the behest of a third party. 19 Accordingly, because inspection of the documents in question leads me to conclude that nothing contained therein "tends to establish" Google's case, and having regard to the above authorities, the application by Google is refused with costs. 20 I now turn to the next issue, namely, whether the ACCC should be given leave to file and serve a Second Further Amended Statement of Claim and a Second Further Amended Application.


case_outcome: approved

case_text: The issues that fall for determination are: • the applicant's attack on the warrant on the same grounds as those dealt with by Young J in A2 v Australian Crime Commission [2006] FCA 106 (the A2 point); • his attack on the procedure by which the Commission obtained the notebook; and • his attack on the procedure by which the Commission obtained the DVDs. 14 The A2 point can be disposed of shortly. Mr Lucarelli QC for the applicant said: "The parties [are] content ... to ... simply rely upon [their] written submissions and the decision [in] A2 with the statement by the applicant that A2 is wrong. But the applicant understands ... that your Honour may well be persuaded by what [was] said in A2 and that your Honour is naturally entitled to follow A2 ..., although the applicant [says] that A2 is wrong and that your Honour ought not follow it." I have read A2 and the parties' written submissions. 16 The applicant has put no contention to me that was not put to Young J in A2 or, more importantly, explained why his Honour's treatment thereof was deficient. In those circumstances, I cannot see how I could be convinced that his Honour was clearly or plainly wrong in A2 .


case_text: As a matter of comity I should follow the decision of another judge of this Court unless I am convinced it is "clearly or plainly wrong". See Cooper v Commissioner of Taxation [2004] FCA 1063 ; (2004) 139 FCR 205 at [46] per Lander J which was approved by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586 at [38] .


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41 ; (2005) 141 FCR 586


case_title: Ryder v Morley (1987) 16 FCR 257

case_text: In any case, Young J rejected the principal argument put to him as contrary to the decision of the Full Court in Ryder v Morley (1987) 16 FCR 257. Like Young J, I am bound by the decision in Ryder to reject that argument. 18 I should address the question of who bears the burden of proof before I turn to the second and third matters set out at [13].


case_text: In Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at [235] and [236], Hely J said: "The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543): 'Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5 ; [1984] AC 74 at 112 per Lord Scarman.' I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants' rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49 ; 192 CLR 69] at 130-131 are to like effect." (The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach". 20 The Commission has discharged the onus described by Hely J. The warrant was adduced into evidence by Ms McClure's affidavit, and the notice by Mr Andrew's affidavit. Further, it is not the applicant's case that the Commission's actions were outside the scope of the authority conferred by the warrant and the notice. The applicant's case is described at [24] and [46]. 21 Section 3F of the Crimes Act relevantly provides: "(1) A warrant that is in force in relation to premises authorises the executing officer or a constable assisting: ... (c) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises ...." The expression "evidential material" is defined in s 3C as "a thing relevant to an indictable offence or a thing relevant to a summary offence, including such a thing in electronic form". The expression "a thing relevant to an indictable offence" is defined in s 3 as: "(a) either of the following: (i) anything with respect to which an indictable offence against any law of the Commonwealth or of a Territory has been committed or is suspected, on reasonable grounds, to have been committed; (ii) anything with respect to which a State offence that has a federal aspect, and that is an indictable offence against the law of that State, has been committed or is suspected, on reasonable grounds, to have been committed; or (b) anything as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of any such offence; or (c) anything as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing any such offence." (The emphasis is mine.) 22 Section 3K relevantly provides: "(1) The executing officer or constable assisting may bring to the warrant premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant. (2) A thing found at the premises may be moved to another place for examination or processing in order to determine whether it may be seized under a warrant if: (a) both of the following apply: (i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance; (ii) there are reasonable grounds to believe that the thing contains or constitutes evidential material ...." (The emphasis is mine.)


case_text: In Williams v Keelty [2001] FCA 1301 ; (2001) 111 FCR 175 at [235] and [236], Hely J said: "The applicants contend that the onus of proving the warrants were lawfully issued falls upon ASIC. Reliance was placed upon the decision of Heerey J in Challenge Plastics Pty Ltd v Collector of Customs (Vic) (No 2) (1994) 49 FCR 541. Heerey J said (at 543): 'Generally speaking, administrative acts are presumed to be valid and the onus is on the party seeking to challenge them: ... However, here we have a rather special situation of an entry on premises and removal of documents without the consent of the owner of the premises and documents. Without lawful justification, such conduct would constitute a trespass. In substance, this proceeding has been concerned with the legal justification advanced by the respondent for that action. Where the exercise of executive discretion interferes with liberty or property rights, once the person affected has shown a prima facie case the burden of justifying the legality of the decision is on the executive: R v Secretary of State for Home Department; Ex parte Khawaja [1982] UKHL 5 ; [1984] AC 74 at 112 per Lord Scarman.' I agree that once the applicants show an invasion of their property or premises by ASIC, the onus is upon ASIC to adduce evidence, and to persuade the trier of fact that its invasion of what would otherwise be the applicants' rights was undertaken with lawful justification. But ASIC discharges that onus by the production of the search warrants, and by demonstrating that its actions were within the scope of the authority conferred by the warrants. If the applicants wish to challenge the issue of the warrants on administrative law grounds, then the onus is on them to make good that challenge. This result is consistent with the decision of the Full Court in Malubel [Pty Ltd] v Elder [(1998) 88 FCR 242] at 249 where the Court held that the issue of a warrant is an administrative act, and steps taken pursuant to it may be presumed to be valid unless and until the warrant is set aside. The observations of Gummow J in Ousley v The Queen [(1997) [1997] HCA 49 ; 192 CLR 69] at 130-131 are to like effect." (The emphasis is mine.) This approach was approved by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at [85] and [86]. (And see X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 at [22] per Finn J.) Like Branson J, I think it "the correct approach".


case_title: X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413


case_text: By his written submissions in reply, the applicant contends that: "[The applicant] was required to produce a thing which was not in his 'custody, possession and/or control' in the requisite sense . In circumstances where: (a) the notice ... required the production of the ... DVDs 'forthwith'; (b) [the applicant] was afforded no opportunity to verify the contents of the DVDs; and (c) [the applicant] was handed the ... DVDs at a time when his presence at the [Commission's] offices was involuntary possession of the 'thing' did not pass to [the applicant]." (The emphases are in the original.) The applicant also cites Chairman, National Crime Authority v Flack (1998) 156 ALR 501 as discussing the relevant authorities. (The Commission does not dispute the facts set out in sub-paras (a) to (c) of the passage quoted above.) 48 The applicant's contentions in the passage quoted at [47] are fundamentally unsound. The qualification of "custody, possession and/or control" by "the requisite sense" begs the question of what that sense is. The terms of the notice are clear. There is no reason to read them down. In the events that occurred, possession however fleeting of the DVDs passed to the applicant when they were handed to him. It is beside the point that they were created by the Commission and handed to him in the knowledge or with the intention that he would immediately thereafter be compelled by way of the notice to hand them back. Until he was so compelled he was in possession of them. It is also beside the point that he was not in possession of them when the notice was issued as opposed to when the notice was served on him. As far as he was concerned, the notice was a dead letter unless and until it was served on him. 52 The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.


case_outcome: discussed

case_text: The Commission referred to the decision of Hill J in Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 396 and 403. In that case, material had been 'seized' at two premises. However, those 'seizures' were defective. In order to remedy those defects, the material was returned to the respective premises and 're-seized'. At 396, his Honour said: "At the premises at Bungo Street the goods which had been seized were brought into the house and then re-seized. However, at 40 Parson Street the seized goods remained in the police vehicle stationary in the driveway and Mr Puglisi's wife was asked to come out to the vehicle and identify the material. The material was 're-seized' while it was still in the vehicle ... and driven away." At 403, his Honour said: "In my view the items that were in the Federal Police car were never 'found' at the Parson Street premises in the course of a search. Nor were they ever then 'seized'. The items were always in the possession of the ... Federal Police and in the car. In my view it would be a misuse of language to speak of items always in the possession of the ... Federal Police as being 'found' at premises merely because they are in a car owned by the Federal Police parked in the premises. Nor can items held by the ... Federal Police be seized by the Federal Police from the Federal Police." Clearly, the situation in the instant proceeding was different from that in Puglisi . The DVDs were handed back to the applicant. That is analogous to the situation at the Bungo Street premises rather than that at the Parson Street premises referred to above. 50 The fact that the applicant was not afforded an opportunity to verify that the DVDs' contents matched their description in the notice does not detract from the fact that he was in possession of the DVDs at time the notice was served on him. Only if the DVDs' contents did not match their description would the notice have been defective because it compelled the applicant to produce "forthwith" a thing that was not in his "custody, possession and/or control". 51 The fact that the applicant was served with the notice during his involuntary attendance at the Commission's offices is neither here nor there.


case_title: Bridges v Hawkesworth (1851) 21 LJQB 75

case_text: The authorities discussed in Flack avail the applicant nothing. They include the 'finding' cases of Bridges v Hawkesworth (1851) 21 LJQB 75, South Staffordshire Water Company v Sharman [1896] 2 QB 44 and Parker v British Airways Board [1982] 1 QB 1004. This is not a 'finding' case. The DVDs were handed to the applicant at the Commission's offices. The question whether the Commission intended to exercise control over its offices to the extent that it owns things found therein by strangers simply does not arise for determination.


case_title: South Staffordshire Water Company v Sharman [1896] 2 QB 44


case_title: Parker v British Airways Board [1982] 1 QB 1004


case_title: Johnson v Williams (2000) 58 ALD 1

case_text: For the above reasons, I would dismiss the application with costs. Further, if I am wrong in any of those reasons, I would, in the exercise of my discretion, refuse to grant the relief sought. In Johnson v Williams (2000) 58 ALD 1 at [24] and [25], the Full Court of this Court said: "One matter that is properly to be taken into account in proceedings to quash or have declared invalid an administrative decision is whether there has been delay in bringing the proceeding. Courts quite properly take the view that there is a need for a speedy determination of the validity of an administrative decision. The interests of good administration and third parties are at stake: O'Reilly v Mackman [1983] UKHL 1 ; [1983] 2 AC 237 at 284; Caswell v Dairy Produce Quota Tribunal for England & Wales [1990] UKHL 5 ; [1990] 2 AC 738. Unreasonable or unaccounted for delay cannot be tolerated. The timely action that is required is the commencement of proceedings for or in the nature of judicial review." (The emphasis is mine.) In that case, the relief sought from and refused by the primary judge was an order to quash a decision of the Attorney-General to refuse to withdraw a request for extradition. 57 In the present case, the warrant was issued on 13 February 2004 and executed the following day. The notice was issued and served on 19 February 2004. The application was filed on 21 December 2005: over 22 months after the events that gave rise to it occurred. The applicant has failed to explain his inordinate delay in commencing proceedings. His attempt to do so by the affidavit of Philip Cadman (of his solicitors) fails. Mr Cadman deposed that: "The ... warrant ... and the ... notice ... form part of a clandestine investigation conducted in circumstances of confidentiality and secrecy. Prior to the [Commission] releasing details of actions taken in the course of their investigations ... [by way of certain press releases issued in June 2005 and exhibited to Mr Andrew's affidavit], it was not possible for the applicant or any other members of the public to be aware that materials outside the scope of the warrant and the notice ... were being acted on by the [Commission]." Apart from being hearsay, this is beside the point. The applicant complains that the Commission's exercise of coercive power in the form of a substantial interference with his personal property was unlawful because it was done pursuant to an unlawful warrant and notice. What happened afterwards is irrelevant to the basis upon which that complaint is made. At most, it merely to put it colloquially raised the stakes for the applicant in his attempt to impugn the warrant and the notice. 58 In any case, Mr Cadman's evidence is contradicted by other evidence adduced by the applicant. Michael Carr (of other solicitors for the applicant) deposed that on 19 February 2004 a member of the Commission advised the applicant in the presence of himself and Mr Galbally QC who appeared for the applicant before me that "the investigation being conducted by the [Commission] would be broadened to include other persons who the applicant had dealings with, as identified in correspondence contained on the applicant's computer [and] stated words to the ... effect [that] '[t]here will be another search warrant'." It is neither here nor there that no such warrant was obtained.


case_text: In the circumstances, I need not deal with the Commission's alternative submission that, if the applicant had made out a case for relief, I should not order the return of the information obtained pursuant to the warrant and the notice or prohibit its use, so as to preserve it for use in foreshadowed criminal proceedings pending a determination of the trial judge therein as to whether or not it should be excluded on the grounds that it was unlawfully obtained. See for example Malone v Metropolitan Police Commissioner [1980] QB 49 and Parker v Churchill (1985) 9 FCR 316.


case_title: Parker v Churchill (1985) 9 FCR 316


case_title: Carnell v Mann (1998) 89 FCR 247

case_text: Full Court of this Court in Carnell v Mann (1998) 89 FCR 247 at 254 held that pursuant to ss 118 and 119 , originals and copies are equally protected subject to the privilege being lost for one of the reasons set out in the succeeding sections of the Act. The second e-mail was merely an electronic means of delivering a copy of the first e-mail to Mr Anderson. Alternative means could have been employed by EP. A photocopy of the first e-mail could have been sent by mail or hand delivered or sent by facsimile transmission. Each method is to the same effect: a copy of the original privileged communication would have been delivered to Mr Anderson. The language of s 118(a) is directed to prohibiting evidence being adduced that would result in disclosure of a confidential communication made between a client and a lawyer. To allow, for example, cross-examination of Mr Drummond, by senior counsel for Euroz, utilising the second e-mail, would inevitably result in evidence being adduced which would result in the disclosure, in whole or part, of the privileged communication in the first e-mail. This reflects the position at common law as noted by the Full Court in Carnell v Mann at 254 when their Honours observed: In principle, whether copies of original documents are privileged at common law should be determined by asking what was the purpose underlying the creation of those original documents , and not what was the purpose underlying the creation of the copies see Carlton Cranes Ltd v Consolidated Hotels Ltd [1988] 2 NZLR 555 at 557 per Tompkins J. ... The better view, we think, is that, at common law, the mere act of copying a privileged document does not lead to loss of privilege in the copy simply because it was not created for a privileged purpose. In an era where so many documents are routinely copied, it would be peculiar to think that the existence of legal professional privilege in any given copy might depend upon the purpose underlying the making of that specific copy. (Emphasis added) It cannot be said that there was an express obligation. However, the circumstances, in my opinion, give rise to an implied obligation upon Mr Anderson, viewed objectively, not to disclose the contents of the first e-mail contained in the second e-mail. It may be seen that such an obligation need not be one which "arises under law" by virtue of s 117(1). As the Court said in Carnell v Mann at 259 the Parliament must have had in mind relationships broader than those of (for example) solicitor/client when it enacted the definitions of "confidential communication", and "confidential document" in s 117(1). The very content of the first e-mail which was copied in the second e-mail disclosed on its face, so far as Mr Drummond, objectively, might have considered, that it related to legal proceedings, actual or anticipated involving EP, Mr Bruce Drummond as one of its directors and inferentially Mr Graham Anderson as a potential witness or at least someone who might be in a position to assist in various ways with that litigation. Again, self-evidently, the first e-mail was addressed to at least one person at Slater & Gordon, a well-known Australian legal firm. It included information concerning the private financial affairs of EP. Furthermore, the second e-mail in the section directed to Mr Anderson shows the subject as "FW: Addition to witness statement". Accordingly, it was being sent and must be taken to have been received in the context of, at least, anticipated litigation. In my opinion, it is inconceivable that EP and Mr Anderson would have considered the communication of the second e-mail to be other than on a strictly confidential basis. Furthermore, I am satisfied that the relationship between EP and Mr Anderson was of a confidential nature. In addition to the other matters which I have mentioned such is the case generally as between a client and the client's accountant. I do not mention these matters with a view to attributing any particular purpose but rather to characterise the confidential nature of the communication. This is not to say that the purpose of the communication may not be relevant to the question whether it was a confidential communication but merely that it is neither necessary to nor determinative of the resolution of the question.


case_text: instituted proceedings against Euroz on 20 May 2008. The trial of these proceedings was listed to commence before Siopis J yesterday but by reason of this application did not commence until this morning. The privilege issue was referred to me, on an urgent basis, by Siopis J to be dealt with separately. It would have been preferable if an objection to the production of the second e-mail on the ground of privilege had been taken on the return of the subpoena: Hardie Finance Corporation Pty Ltd v CCD Australia Pty Ltd (1995) 67 FCR 594. At the time that the second e-mail was sent proceedings had not been instituted although legal proceedings against Euroz were in contemplation by EP. There were in fact two e-mails relevant to this matter which were sent on 17 April 2008. The first e-mail was from Mr Drummond, and was sent on EP's behalf to Ms Carita Kazakoff, a solicitor with Slater & Gordon Solicitors who were acting for EP. It was copied by e-mail to one M. Walter, also a solicitor with Slater & Gordon and P G Willis a barrister then retained on behalf of EP. The "Subject" of the first e-mail was expressed to be "Addition to witness statement".


case_text: the majority of the High Court said to like effect in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at [16] the outcome on the question of privilege did not turn upon the manner in which the content of the privileged communications was disclosed. The privilege attaches to the communications, not to the pieces of paper on which they were written. What was shown were copies of privileged communications. The question is whether the disclosure of the communications resulted in the loss of privilege. The principal question in this application is, in my opinion, the same question identified by the High Court in Mann v Carnell at [1] namely whether the legal professional privilege was lost by a subsequent disclosure of those communications. There is no suggestion here of any express waiver, nor would the evidence justify such a finding. Section 122(2) of the Act provides: (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118 , 119 or 120 .


case_outcome: referred to

case_title: Spotless Group Ltd v Premier Building and Consulting GroupPty Ltd [2006] VSCA 201 ; (2006) 16 VR 1

case_text: second e-mail was no more than a re-communication of the privileged communication contained in the first e-mail. There is no need, in those circumstances, to ask whether the re-communication was made for a privileged purpose. That is the position at common law: Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201 ; (2006) 16 VR 1 at [20] - [24] per Chernov JA with whom Warren CJ agreed. It also reflects that the proper approach in this case in under s 118 and not s 119.


case_text: approach which I ought to take in this application is, in my view, covered by what was said by Finkelstein J in Black & Decker (Australasia) Pty Ltd v GMCA Pty Limited [2007] FCA 1623 at paragraphs 4 to 5. The principal considerations which I have to bear in mind is the prejudice, direct or indirect, to the defendants; the impact of the delay on the plaintiff's part on the conduct of these proceedings; and the reasons for the delay. I have already referred to the reasons for delay which entail commercial considerations as to what is now thought to be, on the plaintiffs' part, the reason for departing from the decision to pursue the warranty insurer. The prejudice to which the defendants point is that the matter, as originally constituted, was ready for a hearing date. A great deal of preparation had been undertaken and, when the matter was before me for directions on 26 February 2009, the parties should have been ready to take a hearing date. I accept Mr Jones' submission that the reality of the present position is that the claim involving YRB is nowhere near the state of preparation of the proceedings in their present form and that he cannot responsibly say that the case will be ready to take a hearing date this year. This is an unsatisfactory situation and has been brought about by the change of commercial course proposed to be taken by the plaintiffs. However, the course which I feel bound to follow has resulted from the approach to the matter taken by YRB. It has adopted an approach which means that one of the primary objects of a commercial court cannot be achieved. This object is the one to which Finkelstein J referred at paragraph 4 of his decision, namely that a commercial court should bring the litigant's dispute on for trial as soon as can reasonably and fairly be done. It seems to me that since this unsatisfactory state of affairs has come about because of the commercial considerations of the plaintiffs, stringent conditions ought to be imposed upon them for the grant of leave. One of the consequences of the approach that the plaintiffs have taken is that there will be need for further discovery. It appears that whilst I believed I had given close management to this proceeding, I may not have appreciated the scope of the discovery presently undertaken. Discovery is not granted as of right and is only granted with the leave of the Court. It appears that very substantial discovery has already been given. As I have said, this will need to be revisited. Equally, further discovery may be required as a consequence of the different damages claim which is now to be made. I will give very close attention to any further orders for discovery. Nevertheless, with some reluctance, I have come to the view that I ought to permit YRB to be joined and to permit Mr Leopold to amend his statement of claim accordingly.


case_text: have heard the parties on the question of the conditions to be imposed. Whilst I am, of course, mindful of the principles relating to an order for indemnity costs laid down in cases such as Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536 ; (1993) 46 FCR 225 , it seems to me that this is an appropriate case to order that the costs thrown away be paid on an indemnity basis. I say this because the wastage of costs has come about as a result of the change of commercial course by the plaintiffs. A commercial decision ought to have commercial consequences and these, in my view, include an order for the payment of wasted costs on an indemnity basis. Whether I ought to order that these costs be paid forthwith is a more difficult question. It is true that the taxation of a claim for costs thrown away would be a difficult exercise to undertake before the ultimate hearing. However, it does seem to me that the exercise would be one that would have to be carried out no matter what the result of the case. In my view, it also follows from the fact that the present position has come about for commercial reasons that the plaintiffs ought not to have the benefit of awaiting the outcome of the proceedings before compensating the defendant for the costs thrown away. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 19 March 2009 Counsel for the Plaintiffs: Mr A. Leopold SC with Mr S. Lawrance Solicitor for the Plaintiffs: Deacons Counsel for the Defendants: Mr M. A. Jones Solicitor for the Defendants: Clayton Utz Date of Hearing: 19 March 2009 Date of Judgment: 19 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/254.html


case_text: is not, therefore, a case in which the applicant has been in a position to adduce evidence which would assist the Court in assessing damages but has not done so: cf Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at 266. It falls into the class of a case in which, as Black CJ and Jacobson J held in Aristocrat Technologies , "damages should be liberally assessed, in the sense that inferences will be more readily drawn against [the wrongdoers], but the object remains to compensate [the applicant], not to punish the respondent": at 569. See also Adidas Salomon AG v Turner [2003] FCA 421 and Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293 at 300.


case_text: for Deckers invites a comparison of the circumstances of the present case with a large number of other cases in which both compensatory and additional damages have been awarded for copyright infringement. Attention was also directed to the quantum of the damages awarded in those cases. They include Aristocrat Technologies , Microsoft Corporation v Glostar Pty Ltd (t/as Downtown Technology Centre) (2003) 57 IPR 518 ; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748 ; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54 ; Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 ; Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102 ; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 ; Foxtel Management Pty Ltd v Mod Shop Pty Ltd [2007] FCA 463 ; (2007) 72 IPR 1 ; Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 ; and Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton On Clothing Pty Ltd (ACN 052 130 462) (2009) 8 IPR 378. These authorities are of limited assistance. They emphasise the unfettered nature of the discretion conferred on the Court in fixing an appropriate measure of additional damages. They demonstrate that, depending on the circumstances of the case, a significant award of additional damages can be made even though compensatory damages are fixed at a nominal sum; and that additional damages are often fixed at a lower sum than that awarded for compensatory damages. They make it plain that there is no recognised practice of awarding additional damages in an amount equal to or lower than compensatory damages: cf Raben Footwear at 104 (per Tamberlin J).


case_text: purpose of an award of damages in a tort action is to compensate the applicant for loss suffered as a result of the tort: see Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 at 63. The same principle operates in relation to damages for breach of copyright: see Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at 568. The principle will also have application in determining many (but not all) cases arising from contraventions of consumer protection provisions in legislation such as the TP Act and the FT Act: see Gates v The City Mutual Life Assurance Society Limited [1986] HCA 3 ; (1986) 160 CLR 1 at 13. This is not, therefore, a case in which the applicant has been in a position to adduce evidence which would assist the Court in assessing damages but has not done so: cf Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at 266. It falls into the class of a case in which, as Black CJ and Jacobson J held in Aristocrat Technologies , "damages should be liberally assessed, in the sense that inferences will be more readily drawn against [the wrongdoers], but the object remains to compensate [the applicant], not to punish the respondent": at 569. See also Adidas Salomon AG v Turner [2003] FCA 421 and Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293 at 300. One basis for assessing damages in cases in which infringements of intellectual property rights have occurred is the making of an estimate of sales lost by the applicant as a result of the infringing conduct. Such an approach is apposite in cases such as the present where the infringing conduct has been engaged in for the purpose of convincing purchasers that they are acquiring the applicant's products: see Aristocrat Technologies at 570; Sony Computer at [8]. Counsel for Deckers invites a comparison of the circumstances of the present case with a large number of other cases in which both compensatory and additional damages have been awarded for copyright infringement. Attention was also directed to the quantum of the damages awarded in those cases. They include Aristocrat Technologies , Microsoft Corporation v Glostar Pty Ltd (t/as Downtown Technology Centre) (2003) 57 IPR 518 ; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd (No 3) [2007] FMCA 748 ; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135 ; (2004) 63 IPR 54 ; Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 578; Zero Tolerance Entertainment Inc v Venus Adult Shops Pty Ltd [2007] FMCA 155 ; Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 64 IPR 18 ; Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102 ; Amalgamated Mining Services Pty Ltd v Warman International Ltd [1992] FCA 542 ; (1992) 24 IPR 461 ; Foxtel Management Pty Ltd v Mod Shop Pty Ltd [2007] FCA 463 ; (2007) 72 IPR 1 ; Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212 ; and Elwood Clothing Pty Ltd (ACN 079 393 696) v Cotton On Clothing Pty Ltd (ACN 052 130 462) (2009) 8 IPR 378. These authorities are of limited assistance. They emphasise the unfettered nature of the discretion conferred on the Court in fixing an appropriate measure of additional damages. They demonstrate that, depending on the circumstances of the case, a significant award of additional damages can be made even though compensatory damages are fixed at a nominal sum; and that additional damages are often fixed at a lower sum than that awarded for compensatory damages. They make it plain that there is no recognised practice of awarding additional damages in an amount equal to or lower than compensatory damages: cf Raben Footwear at 104 (per Tamberlin J).


case_text: each of these provisions, it is necessary for the Court to assess whether the conduct of Hepbourne was likely to mislead potential customers, whether they be astute or gullible, intelligent or lacking in intelligence, well educated or poorly educated: .au Domain Administration Ltd v Domain Names Australia Pty Ltd [2004] FCA 424 ; (2004) 207 ALR 521 at 527. It is not necessary for Deckers to establish that anyone was actually misled or deceived: see Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198. Conduct is likely to mislead or deceive if, on an objective assessment, there is a real and not remote possibility that it will do so. It is not necessary for an applicant to establish that the degree of likelihood exceeds 50 per cent: see Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 87.


case_title: Australasian Performing Right Association Ltd v Monster Communications Pty Ltd (2006) 71 IPR 212


case_text: findings also have relevance in the present context. There has been a deliberate attempt by those involved in the manufacture of the counterfeit boots (including Hepbourne and Vladimir Vaysman) to persuade potential purchasers that they would be purchasing what were described as "genuine UGG australia" products. Vladimir Vaysman so informed those involved in the marketing of the footwear including Ms Farley and Ms Sommer. In these circumstances, and in the absence of any contrary evidence, the inference may comfortably be drawn that Hepbourne, Vladimir Vaysman and the other Respondents who were involved replicated or substantially replicated Deckers' get-up in an attempt to convince potential purchasers that they were acquiring the genuine Deckers' product. As Weinberg and Dowsett JJ said in Sydneywide Distributors at 388: "Without wishing to labour the point unduly, we again point out that where a trader, having knowledge of a particular market, borrows aspects of a competitor's get-up, it is a reasonable inference that he or she believes that there will be market benefit in so doing. Often, the obvious benefit will be the attraction of custom which would otherwise have gone to the competitor. It is an available inference from those propositions that the trader, with knowledge of the market, considered that such borrowing was "fitted for the purpose and therefore likely to deceive or confuse"...". See also Australian Woollen Mills Limited v F.S. Walton and Company Limited [1937] HCA 51 ; (1937) 58 CLR 641 at 657 per Dixon and McTiernan JJ.


case_title: Bailey v Namol Pty Limited [1994] FCA 1401 ; (1994) 53 FCR 102


case_text: three core concepts of the tort, shortly stated, are reputation, misrepresentation and damage. They have been referred to as "the classical trinity": see Conagra Inc v McCain Foods (Aust) Pty Ltd [1992] FCA 159 ; (1992) 33 FCR 302 at 355-6 and Consorzio del Prosciutto di Parma v Marks & Spencer plc (1989) 16 IPR 117 at 123. The tort is intended to prevent and compensate for commercial dishonesty which prejudices competitors of the infringing party and customers.


case_title: Consorzio del Prosciutto di Parma v Marks & Spencer plc (1989) 16 IPR 117