case_text: In my opinion the requirement that expenditure contemplated by s 38 is liable to be made in carrying on or providing operations, facilities and other things comprising the project is incapable of covering the hedging expenses the subject of these proceedings. The section contemplates a close connection between the expenditure and the physical activities involved in the petroleum project. Interestingly, one of the cases cited on behalf of Woodside Energy, albeit for a different purpose, was Robe River Mining Co Pty Ltd v Commissioner of Taxation (1989) 21 FCR 1 in which the Full Federal Court said: The use of the phrase "in carrying on prescribed mining operations" suggests a quite direct relationship between the expenditure and the operations, to be distinguished from the looser relationship which would be expressed by the words "in connection with" if they were used in a provision of this kind. The passage was used to support the proposition that by not using, in s 24(b), language suggesting the kind of direct connection required in the provisions under discussion in Robe River Mining Co Pty Ltd 21 FCR 1, Parliament had intended to provide for a wide range of relationships between expenses and sales for the purposes of s 24(b). As indicated above, for reasons which I have given, I do not accept that proposition. And it is plain that so far as s 38 is concerned it cannot extend to expenses of the kind in issue in this case. 277 For the preceding reasons the application will be dismissed with costs. I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 10 December 2007 Counsel for the Applicant: Mr JW de Wijn QC and Mr AT Broadfoot Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: Ms M Gordon SC, Mr SHP Steward and Mr A Pound Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11, 12, 13, 14 and 15 December 2006 Date of Judgment: 10 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1961.html


case_outcome: cited

case_text: Debates about the application and purpose of s 46 of the Trade Practices Act 1974 (Cth) concerning abuse of market power, illustrate the point. On one view the proper purpose of s 46 as enacted was to protect competition rather than competitors: Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13 ; (2001) 205 CLR 1 at 13; Boral Besser Masonry Ltd v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374. Nevertheless the section has been subject to amendment designed to protect the interests of small business rather than the competitive process. The High Court has observed that statutes sometimes embody responses to "shifting and contradictory positions" taken by a range of interest holders in legislative outcomes and expressing "an inarticulate (or at least not publicly disclosed) compromise": Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at [32].


case_title: Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303 ; (2006) 155 FCR 357

case_text: Professor Ross Garnaut is Professor of Economics at the Australian National University. By a letter dated 7 October 2005 he was requested by the solicitors for Woodside Energy to provide his expert opinion in relation to a dispute concerning the appropriate treatment of hedge expenses under the PRRTAA. He produced a report, responsive to a number of questions put to him by the solicitors. The report was exhibited to his affidavit of 28 March 2006. Professor Garnaut's evidence was the subject of a ruling as to admissibility in an interlocutory decision published on 4 October 2006: Woodside Energy Ltd v Commissioner of Taxation (2006)155 FCR 357. Under the terms of that ruling it was received subject to relevance. 184 Professor Garnaut served as Principal Economic Advisor to the Prime Minister, Mr RJL Hawke, from 1983 to 1985. From 1985 to 1988 he was Australian Ambassador to the People's Republic of China. He did not occupy any economic advisory role with respect to government when the PRRTAA was enacted in 1987. It appears also that he had no part in the preparation of drafting instructions in relation to the legislation. 185 The questions posed for consideration by Professor Garnaut began by asking for an 'economic perspective' on what is conveyed by the description of a tax as a 'resource rent tax'. He was asked to identify 'from an economic perspective' the features and objectives of such a tax distinguishing it from royalty or excise regimes. He was asked about the relationship between the term 'economic rent' and the profit of a particular resource project in respect of which RRT is payable. Against the background of those questions there were then five specific questions put relating to the hedging losses claimed by Woodside Energy. They were as follows: 5. On the assumption that PRRT is intended to be a tax on "economic rent", would an economist make allowance for amounts received and expenses incurred on the hedging activities undertaken by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) in measuring the amount upon which PRRT is to be levied in relation to the Laminaria project? 6. Would an economist regard the expenses incurred by Woodside in relation to the hedging transactions described in the Woodside affidavits as expenses payable in relation to the sale of petroleum produced from the Laminaria project? 7. Is there any reason why an economist would treat hedging expenses differently from interest paid in respect of monies borrowed for the purposes of assessing economic rent or the amount upon which to levy PRRT? 8. In your opinion, can the hedge expenses incurred by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) be described from an economic point of view as marginal costs associated with the Laminaria project? You should explain what is meant by the description of a cost as a "marginal cost". 9. If one failed to take into account the hedge expenses incurred by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) in measuring the economic rent or the amount upon which to levy PRRT, what would be the consequences of such a failure in terms of meeting or failing to meet the objectives of a resource rent tax? 270 As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.


case_text: As I said in the interlocutory decision in Woodside Energy [2006] FCA 1303 ; 155 FCR 357 at 374, the words "in relation to" and similar terms such as "in respect of" or "in connection with" or just "in" have been considered in many cases and many contexts. All of them indicate a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection sufficient to answer the statutory description depends upon its context. The term "in respect of" was said to "[gather] meaning from the context in which it appears ...": Workers' Compensation Board (Qld) v Technical Products Pty Ltd [1988] HCA 49 ; (1988) 165 CLR 642 at 653-4 per Deane, Dawson and Toohey JJ. The term "in relation to" has been called a "prepositional phrase" which is "indefinite" and which "subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters": O'Grady v Northern Queensland Co Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). As the present case illustrates the extent of the relationship required depends upon the context in which the words are used. See also Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482. Context and purpose are everything in the construction of such indefinite phrases as "in relation to". The citation of authorities, a number of which were canvassed in argument, is of limited assistance where they relate to different statutory settings.


case_text: The detailed background to the proceedings has already been set out in the judgment, which I delivered on 10 January 2008: Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5. At that time injunctive orders were made by consent against the first to fourth respondents. Pecuniary penalties were imposed on them after consideration of agreed statements of fact and submissions by the parties. Declaratory relief, which was sought by the ACCC, was stood over pending the finalisation of proceedings against the seventh respondent, Study Overseas Now Pty Ltd (Study Overseas Now) and the resolution of issues concerning the joinder of its principal, Mr Seow Bing Yeo, who is as yet not a party to these proceedings, but against whom a motion for joinder is pending. 3 The position of the fifth and sixth respondents was not resolved by that judgment. They are Sang-Hong Jung, trading as the Nanuri Education Centre (Nanuri) and Rebekah Cabalt, her former office manager. Although they were represented earlier in these proceedings, and while represented filed defences effectively admitting various of the contraventions alleged against them, they have for some time been unrepresented and have been given time by the Court to consider their position and to make submissions. The position today is that the ACCC has identified three contraventions of the Code on the part of Sang-Hong Jung, trading as Nanuri, and one count of involvement in Ms Jung's contraventions by Ms Cabalt, as her employee. The contraventions and involvement alleged by the ACCC and admitted by Ms Jung and Ms Cabalt were as follows: 1 The Fifth Respondent ( Nanuri ), by making an oral agreement with the First Respondent ( Kokos ), the Third Respondent ( IAE ) and Jobbok International Pty Ltd ( Jobbok ) in early to mid 2004 as defined in the Statement of Claim ( Oral Agreement ) made a contract or arrangement, or arrived at an understanding, which contained a provision that had the purpose or the effect or was likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to Education Consulting Services supplied by the parties in competition with each other within the meaning of section 45A(1) of the Competition Code of Western Australia ( Code ) and accordingly had the purpose or the effect or was likely to have the effect of substantially lessening competition and thereby engaged in conduct in contravention of section 45(2)(a)(ii) of the Code. 2 Nanuri, by making a written agreement with Kokos, IAE, Study Overseas Now Pty Ltd ( Study Overseas Now ) and Jobbok in mid 2004 as defined in the Statement of Claim ( Written Agreement ) made a contract or arrangement, or arrived at an understanding, which contained a provision or provisions that had the purpose or the effect or was likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to Education Consulting Services supplied by the parties in competition with each other within the meaning of section 45A(1) of the Code and accordingly had the purpose or the effect or was likely to have the effect of substantially lessening competition and thereby engaged in conduct in contravention of section 45(2)(a)(ii) of the Code. 3. Nanuri, by refraining from engaging in the practice of offering or agreeing to accept a Discounted Tuition Fee (as defined in the Statement of Claim) for various periods totalling approximately four weeks on dates unknown to the Applicant but in approximately the last six months of 2004 and/or the first six months of 2005 gave effect to a provision or provisions of the Oral Agreement and/or Written Agreement in contravention of section 45(2)(b)(ii) of the Code. 4 The Sixth Respondent ( Rebekah Cabalt ), by engaging, on behalf of Nanuri, in the conduct that constituted each of the contraventions of the Code by Nanuri referred to in paragraphs 1, 2 and 3 above, was directly or indirectly, knowingly concerned in, or party to, the contraventions by Nanuri of sections 45(2)(a)(ii) and 45(2)(b)(ii) of the Code within the meaning of sections 76(1)(e) and 80(1)(e) of the Code. 4 The contraventions now alleged are admitted by Ms Jung and the involvement alleged is admitted by Ms Cabalt. They do not dispute the orders sought so far as they relate to declaratory relief and so far as they relate to the proposed injunctions and, in the case of Ms Jung, the proposed requirement to attend at a trade practices compliance seminar. The only issue that remains is the determination of pecuniary penalties. 5 The general principles governing the imposition of pecuniary penalties under the Act and the Code, were canvassed in Australian Competition & Consumer Commission v Kokos International Pty Ltd (No 2) [2008] FCA 5 and I will not repeat them here, save to emphasise the significance of their deterrent purpose. I also observe the necessity to take account of relevant distinctions between different contraveners in the context of the deterrence principle, which informs the penalties that are imposed. 6 As with each of the other parties who have been dealt with, it is not disputed that Ms Jung and Ms Cabalt were unaware that they were breaking the law by entering into, and being involved in, the implementation of the agreements not to offer discounted tuition fees. There was no question of any concealment. They have admitted the contraventions and as the ACCC acknowledges, have cooperated with it in its investigations into the agreements that had been made. Neither has been involved previously in any contravention of the Act or Code. In an affidavit sworn by Mr Hilton for the ACCC, documents which are exhibited, including material from the former solicitors for Ms Jung and Ms Cabalt, indicate that the Nanuri business had a net income of approximately $19,000 for each of the financial years ended 30 June 2006 and 30 June 2005. Ms Cabalt's annual income during the relevant period as its office manager, was $30,000. The gross commission income of the business, according to a profit and loss statement with which I have been provided by Ms Jung, was $340,247 in 2004 and $266,378 in 2005. In 2004 there was additional income derived from consulting fees and other fees. It is apparent that Ms Jung's business was by far the smallest of the operations with which the Court has been concerned in this case. The turnover of the first and third respondents was three to four times greater than the turnover of this firm. The net operating profit for 2005 was $19,925. A loss of $51,474 was shown for 2004. 7 It appears from the submission by Ms Jung, which is not contested by the ACCC, that after the agreements were struck and implemented, her business actually lost clientele because she was not in a position, adhering as she did to the agreements, to offer discounted tuition fees. Absent discounting, the size and facilities of her competitors made them more attractive to students. 8 Both Ms Jung and Ms Cabalt are of limited means which is well evidenced by the fact that they have been unable to afford ongoing legal representation. The anticompetitive conduct which was entered into in this case, as I remarked in the judgment given on 10 January, was blatant price fixing. It was blatant, I suppose, because nobody who participated in it seems to have been in the least aware that they were breaking the law. Indeed, they even set up a council of competitors to enforce the agreements. I have no doubt that their exposure to these proceedings and the expense and time that has already been involved have themselves had a significant deterrent effect on Ms Jung and Ms Cabalt in respect of any repetition of this conduct. I see very little, if any, risk of further contraventions on the part of Ms Jung, who continues operating the business. Ms Cabalt is no longer involved in the business. 9 In the circumstances, having regard to the deterrence requirement and the relevant distinctions between Nanuri and the other respondents and the factors I have mentioned, I will impose a penalty on Ms Jung of $3,000 in respect of each admitted contravention, making a total of $9,000. As to Ms Cabalt, in respect of her participation, I impose a penalty of $1,500. 10 The orders that I will make are as follows: 1. The declaratory orders sought against the fifth and sixth respondents be stood over to the completion of these proceedings or to such earlier date as may be sought by the ACCC. 2. The fifth respondent be and is hereby restrained for a period of three years from the date of this order, whether by herself, her servants or agents or otherwise howsoever from: (a) making or arriving at; (b) giving effect to; (c) attempting to make or arrive at or give effect to, any contract, arrangement or understanding with Kokos International Pty Ltd (Kokos), IAE Edu Net Perth Pty Ltd (IAE), Study Overseas Now Pty Ltd (Study Overseas Now), Jobbok International Pty Ltd (Jobbok) or any supplier of education consulting services in Western Australia which contains a provision that: (d) has the purpose or the effect or is likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to education consulting services supplied by any of the parties to the contract, arrangement or understanding in competition with each other; or (e) has the purpose or a substantial purpose of preventing, restricting or limiting the supply of education consulting services to Korean students or prospective students by any of the parties to the contract, arrangement or understanding who are competitive with each other. 3. The fifth respondent is, within three months from the date of this order, to attend a trade practices compliance program seminar relating to the provisions of Part IV of the Code (including s 45 of Part IV) conducted by an independent external professional with trade practices law experience who is acceptable to the applicant or otherwise approved by the Court. 4. Within one week of attending the seminar, the fifth respondent must notify the applicant of her attendance. 5. A pecuniary penalty of $3,000 is imposed on the fifth respondent for each of the three contraventions of the Trade Practices Act 1974 (Cth) referred to in the statement of contraventions filed by the ACCC on 11 January 2008, a total penalty of $9,000. 6. The sixth respondent is hereby restrained, for a period of three years from the date of this order, whether by herself, her servants or agents or otherwise howsoever, and by any means whatsoever, from being in any way directly or indirectly knowingly concerned in, or party to, any contract, arrangement or understanding with Kokos, IAE, Study Overseas Now, Jobbok or any supplier of education consulting services in Western Australia which contains a provision that: (a) has the purpose or the effect or is likely to have the effect of fixing, controlling or maintaining or providing for the fixing, controlling or maintaining of a discount, allowance, rebate or credit in relation to education consulting services, supplied by any of the parties to the contract, arrangement or understanding in competition with each other; or (b) has the purpose or a substantial purpose of preventing, restricting or limiting the supply of education consulting services to Korean students or prospective students by any of the parties to the contract, arrangement or understanding who are competitive with each other. 7. A pecuniary penalty of $1,500 is imposed on the sixth respondent in relation to her involvement in the contraventions set out in the statement of contraventions by the applicant filed 11 January 2008. 8. The fifth and sixth respondents are to pay the applicant's costs, to be taxed if not agreed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 18 January 2008 Counsel for the Applicant: Mr W Keane Solicitor for the Applicant: Corrs Chambers Westgarth Ms S Jung appeared in person Ms R Cabalt appeared in person Date of Hearing: 17 January 2008 Date of Judgment: 17 January 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/20.html


case_outcome: referred to

case_text: opposed the tender of those paragraphs of the Lee Outline and the attachments, the subject of the grant of leave to use referred to in [41] above, on the ground that they were privileged, but fairly conceded that the weight of authority, in particular authority binding on me, was against its submission. The prevailing authority in this Court is in favour of the filing and service of an outline of evidence being a full waiver of privilege, such that the outline is then protected only by the implied undertaking to the Court not to use the document other than for the purpose of the proceeding without the leave of the Court: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283 at [20] [23]; Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137 at [15] [19] per Gordon J; ACCC v Construction, Forestry, Mining and Energy Union [2008] FCA 678 at [122] [130] per Finn J; Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976 at [15] per Lander J. Once leave is granted to use the document, the party seeking to do so is released from the implied undertaking and may use it accordingly.


case_title: Australian Medi-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No. 3) [2008] FCA 976


case_text: counsel for Telstra submitted that there was no voluntary disclosure because the Rules (O 16 r 2(2)(b)) mandated the verification of the answers by affidavit; indeed, he submitted that the disclosure was made under compulsion of law and so fell within the exception specifically referred to in [63] above. He further submitted that he was not seeking to read Ms Paatsch's affidavit and that contrary to Optus' submission, he was not deploying an answer, based on privileged communications, 'for forensic or commercial purposes'; Bennett v Chief Executive of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101 at [68] per Gyles J. On the other hand, I think there is a more fundamental response to Optus' submission that there has been a waiver of any privilege in the documents referred to in [62] above. First, para 3 of Ms Paatsch's affidavit says no more than that Telstra's answers to the interrogatories are based on her review of relevant documents and enquiries of current and former employees of Telstra.


case_title: Cadbury Schweppes Pty Ltd v Amcor Ltd [2008] FCA 88 ; (2008) 246 ALR 137


case_outcome: applied

case_text: it may be accepted that implied waiver at common law will occur where: [T]he privilege holder's conduct is inconsistent with the continued confidentiality of the communication because he or she has put in issue the character or contents of the communication in pursuing a right or claim, or has created a situation where another party must reasonably do so by way of a defence. ( Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 ; (2006) 151 FCR 341 at [54] ) Earlier, the same Full Court said at [52]: These authorities show that, where issue or implied waiver is made out, the privilege holder has expressly or impliedly made an assertion about the contents of an otherwise privileged communication for the purpose of mounting a case or substantiating a defence. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. Third, nothing in Ms Paatsch's affidavit put the contents of an otherwise privileged communication in issue, in the sense of mounting a case or substantiating a defence. The contrast with Rio Tinto is exemplified by what the Full Court said at [71] and [72]: [71] By his answers to Rio's requests, the Commissioner disclosed that the eight privileged scheduled documents were relevant to reaching his state of satisfaction and exercising his discretions. Although the validity of his state of satisfaction and the exercises of his discretion are key issues in the substantive proceeding, as indicated earlier, the mere acknowledgement of the relevance of privileged documents to the key issues does not amount to an act inconsistent with the maintenance of privilege. As we have seen, so far as the Commissioner was concerned the relevant inquiry was whether, having regard to the material before the decision-maker, the contested decisions were vitiated on Avon Downs grounds. If the particulars merely disclosed that the Commissioner took into account legal advice in reaching his state of satisfaction and exercising his discretions, then that disclosure would not be inconsistent with the maintenance of privilege. [72] The Commissioner has not, however, simply said that the eight privileged scheduled communications were relevant to reaching his state of satisfaction or exercising his discretions. Nor has he said that he took them into account in so doing. We interpolate that a document may be relevant to a decision without evidencing any matter taken into consideration in the making of it (as, eg, an instrument conferring authority to make the decision). The Commissioner could have identified his bases for satisfaction and exercises of discretion by listing the matters he took into account in each case, but he did not do so. Instead, he identified his bases for satisfaction and exercises of discretion as the matters evidenced in the scheduled documents. In so doing, the Commissioner did more than make an assertion about the relevance of these communications . In his particulars, the Commissioner has said that he took into account the matters evidenced by numerous documents, including the eight privileged scheduled documents. In so doing, the Commissioner has made an assertion that puts the contents of these eight documents in issue, or necessarily lays them open to scrutiny, with the consequence that there is an inconsistency between the making of the assertion and the maintenance of the privilege. (Emphasis added.) For these reasons, I am of the view that there was no waiver of any privilege in any documents of the kind referred to in [62] above. ISSUES 1 AND 2 Issue 1: What Information did Telstra use in the Preparation of the Market Share Reports? The difficulty with determining this particular issue is that the only party which knew what information had been used in the preparation of the market share reports, Telstra, led no evidence on the matter. There was some 'evidence from the bar table' in the form of submissions but, apart from its answers to the interrogatories I gave Optus leave to administer, there is no direct evidence. There are documents in evidence which, arguably, enable one to draw inferences and conclusions as to what information might have been used, in particular, the market share reports and internal Telstra communications, but the element of uncertainty that attends that task, makes it a less than satisfactory course to take.


case_title: Hadley v Baxendale (1854) 9 Exch 341

case_text: the end of the day, senior counsel for Optus conceded that if there was no breach of contract, specifically cl 15 of the Access Agreement (as to which see [26] [31] below), neither of the alternative causes of action pleaded breach of confidence under general law principles and unconscionable conduct in contravention of s 51AA of the TPA had any 'legs'. I think this concession was correctly made. On the other hand, he said that if breach of contract is established, the equitable cause is still relevant to Optus' claim for an account of profits and that damages under s 82 of the TPA may be not the same as the claim for ' Hadley v Baxendale ' ((1854) 9 Exch 341) damages in contract, although it is difficult to see how Optus could do better in damages under s 82 of the TPA for contravention of s 51AA, than it could do on the contract claim. So articulated and confined, the ultimate issue as pleaded has the following underlying issues, the answers to which will determine the answer to the ultimate issue: (1) What information did Telstra use in the preparation of the market share reports? (2) If Telstra used Optus' traffic information in the preparation of the market share reports, was that the use of Confidential Information of Optus for the purposes of the Access Agreement? (3) If the answer to issue 2. is 'yes', is Telstra's use of Optus' traffic information a permissible use of such information under the Access Agreement? (4) If the answer to issue 2. is 'no', is Telstra's use of Optus' traffic information a permissible use of such information under the Access Agreement? (5) Did the market share reports themselves contain Confidential Information of Optus for the purposes of the Access Agreement? (6) If the answer to issue 5. is 'yes', is the use to which the market share reports are proven to be put a permissible use of such information under the Access Agreement? (7) If the answer to issue 5. is 'no', is the use to which the market share reports are proven to be put a permissible use of such information under the Access Agreement? In respect of all but the first underlying issue, there are two collateral issues to be addressed: (1) The proper construction of the relevant provisions of the Access Agreement; and (2) the proper application of these provisions to the facts.


case_text: information is 'of a confidential nature'. The law recognises the information of a business concerning its customers as an established category of confidential information which attracts the protection of the Courts at general law: see, e.g., Lansing Linde Ltd v Kerr (1990) 21 IPR 529 at 536 per Staughton LJ. Second, provisions of the Access Agreement expressly provide that traffic information is subject to confidentiality restrictions on use and disclosure imposed by cl 15. Clauses 10.1 (obligations to provide information under the agreement are subject to the requirements of confidentiality imposed by cl 15), 10.4 (the parties must provide each other with certain traffic information), 10.7 (the information provided under the agreement may only be used for the purpose for which it was given) and 10.10 (establishing a limitation on the obligation to provide certain traffic information), as well as cl 15.1 itself; all make express provision. Third, the evidence to be given by the witnesses would confirm that such traffic information is of a confidential nature, and was intended by the parties to be subject to the restrictions imposed by cl 15. Optus referred to the nature and context of the negotiations that led up to the entry into the Access Agreement, which was dealt with in evidence by Mr Petts. Optus also relied upon the fact that the traffic information is not released or disclosed by Optus other than pursuant to the provisions of the Access Agreement.


case_title: Liberty Funding Pty Ltd v Phoenix Capital Limited (2005) 218 ALR 283


case_outcome: considered

case_title: Lyall v Kennedy (1884) 27 CLD 1

case_text: on the question of the sufficiency of an answer to an interrogatory, it was established 125 years ago that the whole of the affidavit in answer had to be referred to, not just the answer to a particular interrogatory: Lyall v Kennedy (1884) 27 CLD 1 at 15 per Cotton LJ. In the present case, the interrogatory in para 1(e) relevantly read: 1A. Look at paragraphs 12(b), 16(a), 18(a), 22(a), 25(a), 28(a), 30(a) and 33(a) of the Defence to the Third Consolidated Amended Statement of Claim filed 5 March 2007 (' Defence' ) and answer the following in respect of each such paragraph: ... (e) Were any of the Market Share Reports referred to in that paragraph used: (i) for the purpose of marketing, including considering or developing strategy for marketing, products or services of Telstra to existing or prospective customers? Or (ii) for the purpose of promotion, including considering or developing strategy for promotion, of products or services of Telstra to existing or prospective customers? Or (iii) for the purpose of selling, including considering or developing strategy for selling, products or services of Telstra to existing or prospective customers? The answer relevantly read: 1B. Having made enquiries of: for the purposes of paragraphs 1B(a) to 1B(d) of the Interrogatories, current and former employees and contractors of the Respondent including those who have knowledge of Telstra's systems and processes; and for the purposes of paragraph 1B(e) of the Interrogatories, current and former employees of the Respondent including those who received Market Share Reports as defined in paragraph 10 of the Defence, the Respondent, in respect of each of paragraphs 12(b), 16(a), 18(a), 22(a), 25(a), 28(a), 30(a) and 33(a) of the Defence, answer as follows: ... (e) Yes. The sufficiency of the answer to the interrogatory in para 3(e) has to be read in this context, that is, in the context of the answer to the interrogatory in para 1(e) and so read, there cannot be any doubt, in my mind, as to its sufficiency. In determining whether a party should be required to make further answer to interrogatories the court considers whether the existing answer is sufficient and not whether it is truthful: Lyall v Kennedy at 21; McBride v Sandland [1917] SALR 249 at 262. The requirement of sufficiency is now embodied in O 16 r 8 of the Rules.


case_title: McBride v Sandland [1917] SALR 249

case_text: determining whether a party should be required to make further answer to interrogatories the court considers whether the existing answer is sufficient and not whether it is truthful: Lyall v Kennedy at 21; McBride v Sandland [1917] SALR 249 at 262. The requirement of sufficiency is now embodied in O 16 r 8 of the Rules.


case_text: are a form of discovery. An affidavit verifying answers to interrogatories has the same status as an affidavit as to documents verifying discovery. The general rule in relation to such an affidavit is that it is conclusive unless it is self-evident that the discovery is insufficient: see Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341 at 343 per Menzies J. That is not this case. I agree with Telstra's submission that the issue of the notice to produce was a 'backdoor' attempt to overcome the conclusiveness of Ms Paatsch's affidavit; in substance, an abuse of process and on that ground alone I set it aside, para 2 of the notice no longer being in issue. While it was not material to my conclusion, I would add that contrary to the submission that was pressed on me by senior counsel for Optus, I am not persuaded that Ms Paatsch's verification of the answers to the interrogatories by affidavit in accordance with O 16 r 2(2)(b) of the Rules works some waiver, under s 122 of the Evidence Act 1995 (Cth), of the privilege attaching to documents regarding or being the enquiries referred to by Ms Paatsch in paras 3(c) and (d) of her affidavit and communications between Ms Paatsch and any other person made for the purposes of responding to the interrogatories. Under s 122 of the Evidence Act , privilege will be waived where the party concerned consented to the document being adduced, or if the party 'knowingly and voluntarily disclosed to another the substance of the evidence'. Certain exceptions apply to the latter, including (but not limited to) if the disclosure was under compulsion of law (s 122(5)(a)(iii)).


case_title: Cawthorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607

case_text: The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I & J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12. 38 In Cawthorn, Young J extended the life of a deed which had been terminated. In Re Madden (1996) 26 ACSR 10 at 15 his Honour said that the section was wide enough to allow the Court, in an appropriate case, to disregard the fact that an administration may have ceased because of a mistake in carrying out steps under Pt 5.3A. The court could extend the period for convening a meeting as though the administration were still in force.


case_text: The power conferred on the Court by s 447A is broad. Its scope was foreshadowed in the Report of the Law Reform Commission of Australia on the General Insolvency Inquiry (ALRC) which led to the enactment of Pt 5.3A in July 1993. The ALRC recommended that the Court should have: '... a broad power to make orders for the effective operation of the (voluntary administration) procedure.' See Cawthhorn v Keira Constructions Pty Ltd (1994) 33 NSWLR 607; Milankov Pty Ltd v Roycol Ltd (1994) 124 ALR 391; Re I & J Foods Ltd (1995) 58 FCR 92 at 94; Hamilton v National Australia Bank Ltd (1996) 66 FCR 12.


case_title: Re I & J Foods Ltd (1995) 58 FCR 92


case_title: Hamilton v National Australia Bank Ltd (1996) 66 FCR 12


case_title: Re Brashs Pty Ltd (1994) 15 ACSR 477

case_text: The section empowers the Court to do more than just fill in gaps in the legislative scheme or add to the provisions of Pt 5.3A Re Brashs Pty Ltd (1994) 15 ACSR 477 at 481 (Hayne J). It empowers the Court 'to make orders which alter what would otherwise be the operation of Pt 5.3A in relation to a particular company' Brash Holdings Ltd (Administrator Appointed) v Katile Pty Ltd (1996) 1 VR 24.


case_title: Brash Holdings Ltd (Administrator Appointed) v Kantile Pty Ltd (1996) 1 VR 24


case_text: In Australasian Memory Pty Ltd v Brien [2000] HCA 30 ; (2000) 200 CLR 270, the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ acknowledged the width of the powers conferred by s 447A. Their Honours made the following general propositions about its operation: 1. Section 447A is not properly described as a general power standing apart from Pt 5.3A. It is an integral part of the legislative scheme for which that Part provides. In particular it can apply to alter timetables prescribed by other provisions of Pt 5.3A (at 281 [24]). 2. The words of s 447A do not suggest that it cannot be used if, by operation of the provisions of Pt 5.3A , the administration of the relevant company has come to an end. The section deals with a 'particular company' and the operation of Pt 5.3A in relation to it (at 282 [26]). 3. The words of the section 'how this Part is to operate' look to the future but do not preclude the making of orders with future effect but in respect of past matters or events ( at 282 [26]). 4. In connection with the effect of an order under s 447A on accrued or vested rights, two types of case may arise following termination of an administration: (i) Steps are taken by members or officers of the company or by third parties predicated upon termination of the administration other than by entering a deed of company arrangement or going into liquidation eg shares in the company are traded; directors resume the management of the company and deal with its assets or take other like steps on the assumption that the administration is at an end and there is neither a deed of company arrangement nor a winding up. (ii) Steps are taken that are predicated upon the company having validly entered a deed of company arrangement or gone into liquidation (at 283 [30]). To the extent that any steps have been taken following the termination of the Deed in this case and the winding up resolution, they fall into the second category of case identified by the High Court. The court left open the question whether there is power to make an order under s 447A in the first case where the administration has ended (at 284 [32]). In the second kind of case however: '... there would be no inconsistency between the varied operation of Pt 5.3A and the rights that have accrued in the intervening period, if the order gave legal validity to the premise for the parties' conduct.' It may be accepted that in this case there is a possibility, however small, that accrued rights may be affected by an order terminating the winding up, setting aside the termination of the Deed and giving effect to the proposed variation. Under that variation however, the Deed is to be terminated in any event after its conditions have been fulfilled. There is no suggestion of any third party dealings which could be adversely affected by the orders proposed. In any event, they can be accommodated by liberty to apply, limited in time, to vary the orders made to ensure the protection of any accrued right. 40 I am satisfied that I can set aside the termination of the Deed on the basis that the order operates prospectively. The order setting aside the termination will take effect so that the rights and obligations of all parties will be determined as though the Deed continued in effect from the meeting of creditors and had not been terminated. To the extent that there may be any particular direction necessary to take account of any rights or obligations that have accrued since the Deed was terminated, there will be liberty to apply within the next 28 days for a suitable qualifying order. Given that all creditors have been given notice and none has expressed an objection, I regard the probability of such an application as small, but nevertheless will allow such an application within that time.


case_title: Re Pasminco Ltd (No 2) (2004) 49 ACSR 470

case_text: As to the variation of the Deed there is no doubt that the Court has power to order a variation. The power of the Court to make such an order was considered by Finkelstein J in Re: Pasminco Ltd (No 2) (2004) 49 ACSR 470. In that case his Honour said (at [35]): 'The Corporations Act contemplates that a deed of company arrangement may be varied by creditors at a meeting convened under s 445F. The administrators, however, wish to short cut this procedure and have the deed varied by an order made under s 447A. In Milankov Nominees Pty Ltd v Roycol Ltd (1994) 52 FCR 378, 388 Lee J suggested that this could be done. In two decisions in the following year Branson J expressly found the power to exist. The decisions are Re Giga Investments Pty Ltd (Admin Apptd) (No 2) (1995) 13 ACLC 1,185, 1,187 and Mulvaney v Rob Wintulich Pty Ltd (1995) 60 FCR 81, 83. Many cases have followed these decisions. On the basis of these authorities I am satisfied that the power to make variation exists.' 42 In my opinion in this case the variation order sought ought to be made. It appears on the face of it to offer some benefit to creditors. None object, and there is the possibility, although it does not seem great, that Messrs. Forrest and Richardson may be able to revive the company's fortunes. I will therefore make the variation order but in prospective terms rather than the apparently retrospective terms sought by the applicants. 43 For the preceding reasons I will terminate the winding up of Euco, set aside the termination of the Deed and direct that it be varied in accordance with the proposal submitted to the creditors' meeting of 24 March 2006. I will require notice to be given to all creditors of these orders and allow liberty to apply within 28 days for any variation of the order setting aside the termination of the Deed to the extent that it may impinge upon accrued rights. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 21 July 2006 Counsel for the Applicants: Mr P Robinson Solicitor for the Applicants: Williams & Hughes Date of Hearing: 17 July 2006 Date of Judgment: 24 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/935.html


case_text: Not surprisingly, the Trustee submitted that the applicant should not be granted leave. Indeed, the Trustee submitted that even if there had been a breach of reg 6.22, that would not necessarily be a matter that the Tribunal was bound to determine (or ought to determine) having regard to the particular limited nature of its enquiry and the peculiar circumstances of this case. On the other hand, underlying my concern was that if, in the circumstances of this case, reg 6.22 prohibited the Trustee from doing what it did, that is, paying the applicant's benefits into a joint bank account in the names of himself and his wife, then why, on any view, would the decision of the Trustee not to reinstate the applicant's account not be one which raised the issue of whether it was 'unfair and unreasonable': Superannuation (Resolution of Complaints) Act 1993 (Cth), subs 14(2). So understood, review of that latter decision would be within the jurisdiction of the Tribunal: cf., Asgard Capital Management Ltd v Maher [2003] FCAFC 156 ; (2003) 131 FCR 196 at [5] . 10 In Asgard Capital Management Ltd v Maher a Full Court of this Court was called upon to construe the nature and scope of the obligation imposed on a trustee by reg 6.22 in the context of the facts which came before it. Those facts can be shortly stated. The respondent was a beneficiary of the Asgard Independence Plan Superannuation fund which had been established to provide retirement benefits to its members. As at late 1999, the respondent's investment in the fund was $280,000. He instructed his financial adviser to deal with this investment in the following way: $30,000 was to be credited to a joint bank account in the name of the respondent and his wife; $5,000 was to be applied to the purchase of shares in Coles Myer; the balance of $245,000 was to be transferred to a new investment with the trustee. To enable the adviser to carry out this instruction, the respondent signed a blank payment request form (which covered three pages) directed to the trustee. He gave the form to his adviser and left it to him to complete the form in the required manner. It was this act which put the adviser in the position where he could misappropriate the money. He completed the form so that the trustee was directed to pay the whole of the respondent's entitlement into a bank account maintained by the adviser. As directed, the trustee deposited $280,000 into the nominated account. The adviser then transferred $30,000 to his client's bank account. He also purchased $5,000 worth of Coles Myer shares on his client's behalf. He kept the rest of the money (together with $50.65 interest) for himself. 11 Following the discovery of the theft, the respondent lodged a complaint with the trustee alleging that by paying his superannuation entitlement to his adviser, the trustee had acted negligently or illegally. He demanded that the trustee make good his loss. The trustee rejected the complaint. The respondent took his case to the Superannuation Complaints Tribunal. The Tribunal determined to set aside the trustee's decision 'on the grounds that it was not fair and reasonable in its operation in relation to the [respondent] in the circumstances'. In substituting its own decision for that of the trustee, the Tribunal decided that the respondent should be paid a superannuation benefit of $245,050.46. The trustee then brought an 'appeal' on a question of law: see s 46 of the Superannuation (Resolution of Complaints) Act 1993 (Cth). The question of law that arose was the meaning of the phrase 'must not be cashed in favour of a person other than the member' in reg 6.22(1). The judge who heard the appeal affirmed the decision of the Tribunal. 12 In the course of their reasons, the Full Court said (at [5]): 'Although he did not expressly say so, the judge must have construed the words "must not be cashed in favour of a person other than the member" as prohibiting the payment of a superannuation benefit by the trustee to a member by making that payment not directly to the member, but rather at the member's direction or to the member's authorised agent. The question raised by this appeal is whether this is the correct construction of reg 6.22.'


case_text: Putting to one side their form, the alleged questions of law in (2) of the notice of amended appeal, even if reformulated as questions, would not be questions of law with the possible exception of (2)(b); they would be questions of fact or, at best, mixed questions of fact and law. Mixed questions of fact and law will not found an appeal: Australian Securities and Investment Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 per Branson J at [84] and Jacobson and Bennett JJ at [107], and even if (2)(b) was reformulated into a question as to whether the Trustee failed to comply with Clause 10.1(b) of the MLC Master Key Superannuation Trust Deed, that question, if a question of law, raises two difficulties: 1. The issue was not raised below and in those circumstances the Tribunal was not required to deal with it by specific reference to the trust deed in its reasons. 2. The clause itself is permissive rather than mandatory so that the failure of the Trustee to require a claimant for payment of a benefit to comply with the terms of Clause 10.1(b) before payment would not amount to a failure on the part of the Trustee to comply with the provisions of the trust deed. 6 During the course of the first day's hearing of the appeal, I indicated to the parties that the only issue which caused me concern was whether the Trustee was entitled to pay the applicant's benefit into a joint bank account in the names of himself and his wife in the face of regs 6.17(2) and 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), which, relevantly, were in the following terms at the relevant date: '6.17 (2) A member's benefits in a fund: (a) may only be paid by: (i) being cashed in accordance with Division 6.3; or (ii) being rolled over or transferred in accordance with Division 6.4 or 6.4A; and (b) must not be paid except when, and to the extent that, the fund is required or permitted under this Part to pay them; and (c) must be paid when, and to the extent that, the fund is required under this Part to pay them. ... 6.22 (1) Subject to regulation 6.22(B) , a member's benefits in a regulated superannuation fund must not be cashed in favour of a person other than the member or the member's legal personal representative unless: (a) the member has died; and (b) the conditions of subregulation (2) or (3) are satisfied. (2) The conditions of this subregulation are satisfied if the benefits are cashed in favour of either or both of the following: (a) the member's legal personal representative; (b) one or more of the member's dependants. (3) The conditions of this subregulation are satisfied if: (a) the trustee has not, after making reasonable enquiries, found either a legal personal representative, or a dependant, of the member; and (b) the person in whose favour benefits are cashed is an individual.' 7 I acknowledged that this particular issue was not raised below and that it was not encompassed by the applicant's notice of appeal. Nevertheless, I indicated to the parties that I would be prepared to hear them on the issue of whether, if the applicant should apply for leave to further amend his notice of amended appeal to raise this issue, leave should be granted. For this purpose, I adjourned the proceedings to enable the parties to consider and address the issue and to file written submissions in support of their respective positions.


case_text: In particular, I see no reason why the Court's incidental power to grant a person leave to appear by a non-lawyer and the power to do so under s 85 of the NTA should not involve similar considerations, particularly in the current context. In Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871 , Lindgren J stated at [20] in relation to an application for leave under s 85: 'What should be clearly understood is that leave is required because it is not to be taken for granted that a person who is not a solicitor or barrister will be allowed to represent a party. Perhaps Dolly Walker thinks that leave is granted as a matter of course, just for the asking. This is not so and for good reason. Solicitors and barristers are qualified by education and training to represent parties and are subject to professional and curial disciplines and responsibilities. The requirement of leave is imposed for the reason that the Court must be satisfied that it is in the interests of the administration of justice in all the circumstances that a party be represented by a person who is not a solicitor or barrister.' See also, Adnyamathanha People No 1 v South Australia (2004) 208 ALR 91 at [9] et seq.


case_text: In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760.


case_text: In Daniel v Western Australia (2002) 194 ALR 278 (' Daniel ') at [17], French J drew from s 66B the following conditions that must be met for an order under the section to be made: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. See also, Holborow v State of Western Australia [2002] FCA 1428 ; Ward v Northern Territory of Australia (2003) 196 ALR 32; Lawson ; and Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760. 29 It is pertinent to note, however, that the Court retains a discretion not to make the orders sought under s 66B of the NTA: see Ward v Northern Territory [2002] FCA 171 (' Ward ') at [16] and Daniel at [18].


case_title: Harrington-Smith on behalf of the Wongatha People v State of Western Australia [2002] FCA 871


case_title: Holborow v State of Western Australia [2002] FCA 1428


case_text: On 13 July 2001, I rejected an application made under s 66B to remove the Lawsons as the applicant: Johnson, in the matter of Lawson v Lawson [2001] FCA 894. Although I accepted that the Lawsons had lost the confidence of some important members of the Claim Group I was not satisfied that the evidence was sufficient to show that the Claim Group, by appropriate decision-making processes, had revoked their authority to represent it or had authorised other members of the Claim Group to replace them.


case_text: In opposing the application for leave for Mr Dengate to appear, Ms Phillips, who appeared for New South Wales Native Title Services ('NTS'), pointed out that the application for leave (which was signed by Mr Dengate) sought to have him represent Mr Lawson and Mr Johnson not only in respect of the present motion but also in the substantive proceedings. The notion that there is any scope for members of the applicant group to be separately represented fundamentally misconceives the role of those comprising an applicant in native title proceedings. As I pointed out in Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 981 (' Johnson ') at [8]: 'Such applicants are representatives of the claimant group; they have no personal interest other than as members of the claimant group and for this reason their interests do not differ from each other or from the claimant group and separate representation is inappropriate and unacceptable.'


case_text: I am satisfied that, in the present circumstances, it is not in the interests of justice for Mr Dengate to be permitted to represent Mr Lawson and Mr Johnson. With the greatest respect to Mr Dengate, and despite his genuine commitment to his clients, I am convinced that he has neither the discipline nor the understanding to assist them or the Court. I am confirmed in this view by my previous experience of Mr Dengate as an advocate; see my comments in Johnson at [14]-[16] and Johnson on behalf of the Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2003] FCA 1411 at [4] - [6] . For these reasons I declined to grant leave for Mr Dengate to appear. 12 It is also relevant to note that Messrs Lawson and Johnson have some experience in native title proceedings in this Court and, as it transpired, their evidence and submissions at the motion hearing were cogent, relevant and explained the dispute between the parties clearly. 13 A further issue was raised at the directions hearing of 5 December 2005 in relation to the suitability or otherwise of the proposed hearing date; 13 December 2005. Mr Dengate contended that there had been delays in the service of the documents relating to the motion. He stated that Mr Lawson had not been served with all the documents until 21 November 2005. Consequently, he argued that it was not appropriate to hear the motion on 13 December 2005.


case_text: Following unsuccessful attempts to mediate the issues within the Claim Group, a further application to replace the Lawsons was successful. On 9 December 2002, I ordered that Ray Lawson, Noel Johnson, Mary-Ann Marton, Jennifer Whyman and Patricia Johnson replace the Lawsons as the applicant: Lawson on behalf of the 'Pooncarie' Barkandji (Paakantyi) People v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 (' Lawson '). On 29 September 2004, the application was amended to add William Bates, Maureen O'Donnell and Cyril Hunter to the group comprising the applicant. These eight individuals presently comprise the applicant in this proceeding. 4 On 23 December 2004, the NNTT refused to accept the amended application for registration. Subsequently, a dispute about the future conduct of the proceeding arose between Ray Lawson and Noel Johnson and the other members of the applicant group. In essence, Mr Lawson and Mr Johnson believe that the area subject to the claim should be split between two claims, those of the people they regard as 'pure' Barkandji people and those of the other members of the Claim Group. 5 Attempts to resolve the dispute referred to above have been unsuccessful and, pursuant to resolutions passed at a meeting of the Claim Group on 1 October 2005, culminated in the filing of a notice of motion on 14 October 2005. By this notice of motion, an amended version of which was filed in Court on 13 December 2005, members of the Claim Group seek an order under s 66B of the Native Title Act 1993 (Cth) ('the NTA') replacing the current applicant on grounds that the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. In effect the motion seeks: (a) to remove Mr Lawson and Mr Johnson from the applicant group as well as a third member, Mrs Patricia Johnson; and (b) to add two new members, Mr Murray Butcher and Mr Derek Hardman. Mr Lawson and Mr Johnson oppose the application to remove them; Mrs Johnson has not appeared or made any submissions however it is alleged that, because of her ill health, she no longer wishes to be part of the group that comprises the applicant or to be involved in the management of the proceeding. 36 For the above reasons, I will make the orders sought in the amended notice filed on 13 December 2005. However, it is pertinent to note that in making these orders the Court is not adversely reflecting in any way on the conduct of Mr Lawson and Mr Johnson. There clearly has been a deeply held disagreement within the Claim Group and this has been resolved in accordance with the provisions of the NTA. As was discussed at the 1 October meeting, an order made under s 66B(2) of the NTA does not remove Mr Lawson and Mr Johnson from the Claim Group, nor does it affect their standing according to traditional law and custom. As members of the Claim Group both will continue to have the opportunity to participate in discussions as to the future conduct of the native title claim and it is to be hoped that they will avail themselves of the opportunity to do so. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 2 February 2006 Counsel for the Applicants on the motion and New South Wales Native Title Services: Ms S Phillips Solicitor for the Applicants on the motion and New South Wales Native Title Services: New South Wales Native Title Services Mr Ray Lawson and Mr Noel Johnson appeared in person Solicitor for the NSW Minister for Land & Water Conservation: Ms S Illiadis Solicitor for the NSW Farmers' Association respondents: Mr R Gorczyca Date of Hearing: 12 December 2005 Date of Judgment: 2 February 2006 'Pooncarie' Barkandji (Paakantyi) People v NSW Minister for Land & Water Conservation [2006] FCA 25 Schedule Respondents NSW Minister for Land and Water Conservation National Parks Association of NSW Inc Avoca Vineyards Pty Ltd Stephen George Alexander Keith James Bell Sam Costa Darryn Robert Davies Henry George Washington Davies Maxwell Charles Gregg Kenneth John Hearne Paul Anthony Hyde William Henry Lever Peter James Middleton William John Summers Balranald Shire Council Bourke Shire Council Broken Hill City Council Central Darling Shire Council Cobar Shire Council The Commonwealth of Australia The Murray Darling Basin Commission Wentworth Shire Council Dareton Local Aboriginal Land Council Mutawintji Local Aboriginal Land Council NSW Native Title Services Limited Keith William Allison Christopher Kym Andrews Ross David and Colleen Frances Andrews Kenneth William and Rosemary Anne Barnes Barry Frederick and Christione Phillis Barraclough Walter John Barraclough and Vera May Douglas Barraclough James Arthur Bartholomaeus Robert Malcolm Bartlett and Eveline Alexis Bartlett Bawarra Pty Ltd Glen Gene Bell; Nyoli Merle Bell, Craig Andrew Bell Peter Robert Beven Randall William Beven Phillip Peter Blore Terry Francis Blore Jeffrey Langdon Bonython and Clara Wendy Bonython Cleveland Jay Bright Dallas Jay Bright Darran Jay Bright Rex and Deana Brunsdon Brywent Pty Ltd; Robin Owen York Jackson Christopher Raymond Byrnes Edward James Byrnes and Patricia Susan Byrnes Gerald Byrnes Calzic Pty Ltd Allan Charles Charmichael and William James John Carmichael Carstairs Holdings Family Trust Church's Plumbing Supplies Pty Ltd Leighton Clark Col Cullinan, Comarto Station Ian Edward Crossing Graeme Ross Crozier and Catherine Marie Petrina Crozier Mark Hurtle Crozier Terry William Crozier Kim Desmond Cullen Danny Ronald and Susan Marie Currran Anthony Charles Dakis and Helen Kay Dakis Dalmorino Props (NSW) Pty Ltd, William Lindsay Scott Crozier Arthur Bernard Davies Edward William Davies and Beatrice Mary Davies Roger F Day Walter Thomas Dell, Maxine Lorraine Dell and Walter John Dell Hugh Robert William Dettmann and Jennifer Mary Dettmann Donald John Cullinan, Cherry Denice Cullinan, DJ & CD Cullinan Pty Ltd Donald Robert Poulton, Dale Phyllis Poulton, Single Oak Pty Ltd Anthony Sholto Douglas Brendon Douglas Duncan, Maureen Therese Duncan and Glen Esk Pastoral Ian Charles Edson and Trudy Nadine Edson Robert James Edwards and Barbara Anne Edwards Clarence Lawrence Elliott and Christine Gaye Elliott Eric Nitscuke, Eric Nitscuke Family Trust Ian David Farnsworth and Delma Joy Farnsworth Maxwell Henry Follett Gary Gaiter John Gall Lachlan John Gall Richard Gates and Joanne Gates Neil Edward Gibbons Brendan R Gorman William Sydney Grace James Graham Garry James Griffiths Gulthul Pty Ltd Malcolm John Hammat Garry Ross Hannigan Frank Murray Hanns and Mary Patricia Hanns Alan Harris and Annie Harris Douglas Linton Harrison Ronald Harvy and Marilyn Peta Harvy Arthur O'Hara Hayes and Jennifer Margaret Hayes Anne Daphne Headon Michael John Healy Patrick Joseph Healy Raymond Gerard Healy Cynthia Heasyman Foster John Heatley Frederick Herring Homfray Family Partnership Elaine Laura Huddleston Phillip Hudson and Daphne Hudson John Gwynne Hughes Kevin David Ingram and Robyn Anne Ingram Inkerman Pastoral Co Pty Ltd David Henry Jackson and Mary Jill Jackson Jeremy John McClure for TJL McClure Pty Ltd John Smith, Marlene Smith, Ricky Howard, Susan Howard Wesley Judd and Kathleen Judd Gaye Constance Kelly Mary Margaret Knight and David William Knight Philip Anthony Larwood and Christine Grace Larwood Andrew John Lawrence and Vivienne Jean Lawrence John Joseph Lawrence Mark Lawrence and Jann Lawrence Peter Lawrence William Norman Lawrence and Anne Dorothy Lawrence Graham Leckie and Julie Leckie Thomas Henry Lee; Dawn Lee; Helen Patricia Lee; Daniel Thomas Lee Neill Robert Leigo and Debra Anne Leigo Stuart LeLievre Lema Props Limbra Pastoral Company Pty Ltd David John Linklater and Denise Cheryl Linklater William George Looney and Shirley Ann Looney David Anthony Lord John Montgomery Lord William Laurence Mahy and Fae Linda Mahy Mallara Station Partnership Frank, Florence, Richard and Jennifer Smith Mannahill Pastoral Services Mark Alexander Withers and Lindy Maree Smith-Withers Mark Etheridge, Megan Davies, M&M Pastoral Pty Ltd Marrapina Station Pty Ltd Bruce Marshall and Wendy Marshall Eric John Martin and Hazel Dorothy Martin Anthony Aloyius McGinty and Heather Ann McGinty Campbell Addison McGrath Paul McPherson and Christine McPherson Michael Joseph Maher and Jeanna Danielle Dettington Bryan Milne and Bronwyn Kaye Milne MK Lush, D Lush, G Lush, JO Lush and BD Lush George V Morton Mount Manara Pastoral Company Murray Edward Cramp, Cramps Pastoral Co Pty Ltd Neil Howard, Lynnette Zell Howard, Chad Lloyd Howard, Hayley Natika Zell Howard John Arthur Nelson and Gillian Mary Nelson Nesbit Rural Holdings. Partners are James Alfred O'Hara Nesbit, Jennifer Faye Nesbit, Martin Edward Nesbit James Markham O'Connor Philip Hurtle Palmer and Patricia Mary Palmer Kevin Payne Penrose Park Recreation Reserve Trust Petro Pastoral Co Pty Ltd Brett Anthony Pickering John Ernest Pippin Gregory John Pollard; Dianne Mary Pollard (Warrananga Proprietors) Vera Jean Pollard (Warrananga Proprietors) Polocara Pastoral Company Pty Ltd Alexander Peter Pulver and Noreen Joy Pulver Gary Arnold Radford Raymond Joseph Byrnes and Luke Anthony Byrnes Grahame Ronald Rees Reginald Edgar Stanmore, Patricia Mary Stanmore, Christopher John Stanmore, Jane Margaret Stanmore Terrence Remmert Robert Charles Duncan Fo "Dunedin Park" Proprietors Ian and Evelyn Robertson Lee Scott Robertson William Geoffrey Rodda and Barbara Valmai Rodda Rodoni Engineering Phillip Albert Rogers Max Oliphant Russell, John Famers Scobie Robert Seekamp and Hillary Seekamp Silverlea Incorporated James Malcolm Skinner and Dinah Helena Skinner Edwin Smith Geoffrey Kenneth Smith and Vanessa Smith Patrick William Smith and Lynda James Smith Thomas Smith Andrew Charles Spinks Stephen Alfred Stewart Withers, Maxine Stuart Withers, Alfred Andrew Stewart Withers Steven Keith Marwood, Sandra Louise Marwood or Belmore Farms Laurence Walter Strachan and Kayleen Frances Strachan Peter Geoffery Sullivan Swiss Australian Farm Holdings Pty Ltd Thomas John Symes Arnold Taylor and Frederick Joseph Taylor John Robert Jeffrey Taylor Milton Douglas Taylor Raymond V Tesseyman Brian Gaffney Thomas David James Turner Graham Holbrook Turner and Judith Mary Turner Kenneth Turner John Vernon Ian Walter Wakefield Andrew Samuel Wall; Edward Alfred Neindorf; Sharyn Edith Neindorf; Kathryn Anne Wall Allan Frederick Wembridge; Lorna Florence Wembridge; James Raymond Wembridge Wenda Johnson, John Johnson, Cheryl Johnson Alan Whyte Maxine Yvonne Wilkinson and Roger Graham Wilkinson William Alfred Anderson, Helen Patricia Anderson, Michael Christian Anderson, Richard John Anderson Neil Geoffrey Williams Richard James Williams Robert Bates Wilson Wirryilka Pastoral Co Pty Ltd Peter Malcolm Withers and Helen Withers Wokabity Pty Ltd Wyona Pty Ltd Christopher Forrest and Shelley Forrest Richard Dale Chapman and Grant Allan Chapman Dominic Alfonzi and Marlene Alfonzi Omah (Peter) Amjah AngloGold Shanti Australia Limited Arumpo Bentonite Pty Ltd Iris Jean Baldwin Basin Minerals Holdings NL (Title Holder), Bemax Resources NL (farminee) George Leslie Baynes; Russell James Hann; Geoffrey Logan Robert John Crawford and Anita Margaret Crawford George Diamantes, James Dimantes Wayne Donehue Graeme R Dowton & Helen M Dowton Neville A Dowton Ronald Arthur Dowton and Susan Erica Dowton Brian Eakin Ellen Francis Golden Cross Operations Pty Ltd Barbara Jean Golya Clair Louise Inness Beryl Eileen Ireland Peter Bruce Kemp Kenneth Joseph King Leo Studman and Beryl Metcalf Macapika Pty Ltd Irvan Robert McRae Minex (SA) Pty Ltd, Minotaur Resources Ltd Murray Basin Titanium Pty Ltd Newcrest Operations Limited (N.O.L.) David Charles Prendergast Morton Edward Ritchie Valerie Jean Ritchie Leigh-Anne Rogers Dieter Ruhl Dorothea Anne Ruhl David George Seaton Vincenzo Sferruzzi Sheila Young and Karl Brunnenmeyer Glenys Smiley Susan Mary Spangler Stephen Hoare and Kathryn Ward Unimin Australia Limited formerly Normandy Industrial Minerals Limited William Neave Young, Sheila Mary Young, Robyn Cecelia Young Denis Young Malcolm Grant Anderson Birdwood Proprietors Broken Hill Licenced Butchers Neville John Crisp Jane Ruby Evans Filmink Pty Ltd Hillston Rural Lands Protection Board Kelleen Holdings Peter John Kiely and Dorothy Anne Kiely Cecil Robert Frederick Leckie Michael George Martin Jane McClure and Murray Churchill McClure Milparinka Rural Lands Protection Board Patrick Arthur Murphy and Moya Grace Murphy Pastoralists' Association of West Darling Pooncarie Hospital Reserve Trust Ian Lewis and Lisa Gay Roberts James Barry Robinson and Judith Robinson Gwen Rowe Alfio OrazioSapuppo; Vince Sapuppo; Maria Sapuppo Nicholas Siemer Silverton Temporary Common Trust Margaret Annette Smith Robert Neil Smith South Western Water Users Association Anne May Strain Ian Milton Strain Tom Ferdinand Willem Gerald Wynen and Jennifer Olive Law Wanaaring Rural Lands Protection Board John Thompson Waters Wentworth Rural Lands Protection Board Willotia Station Pty Ltd John Malcolm Caskey Clive Maxwell Linnett James Edward Manns Wheepool Pty Ltd Transgrid Broken Hill Speed Boat Club Inc. Telstra Corporation Limited Mutawintji National Park Board of Management Lance Hilliard and Samantha Jane Hilliard Frank Misali Ian William Alexander and Susan Anne Alexander Alingh Grove Pty Ltd Douglas John Alvey and Susan Margaret Alvey Raymond George Alvey and Margaret Beatrice Alvey Andriske Vineyards Pty Ltd (Formerly Andriske(Paringi) Nominees Pty Ltd) Gary Charles Andriske and Lin Baddock Peter Bezzina and Julie Bezzina Robert Alexander Blake and Lynette Joy Blake Boeill Creek Holdings Pty Ltd Boeill Creek Nursery Pty Ltd, Raymond Peter and Samantha Maria Formosa; Salvatore B Pensini and Patricia J Pensini Boeill Creek Packers Pty Ltd David Ross Bottom Giovanna Cesco Terry William Channing Stephen Clarke David Griffin Cox and Andrea Cox V and M Cricelli Croftwood Vineyards Pty Ltd Danielle Vineyards Pty Ltd Ian James Dowton Alwyn Elstone and Joan Irene Elstone Eureka Concrete Holdings Pty Ltd Ann Louise Evers Robert Farnsworth James Michael Gilmartin; Elaine Joy Perry Gregg & Sons (Steel) Pty Ltd Brian Gregg and Sandra Gregg Rodney Harvey and Coral Harvey HC & E Farnsworth Pty Ltd Gloria Hucker Ian Robert Mansell, Ruth Enid Nansell, Robert Jeffery Nansell, Kenneth Allan Mansell, Jeanette Ruth Mason, Denise Margaret Pragt Janette Loveday and Andriske Loveday, Robin Harold Lloyd Barrie Blair McMillan and Nola Joy MacMillan Charles Anthony Mangan; Julie Ann Mangan; Peter Kotsoronis Mansell Farms (Family Partnership), Ian Robert Mansell, Ruth Enid Mansell, Robert Jeffery Mansell, Julie Lorraine Mansell, Kenneth Allan Mansell, Anne Elizabeth Mansell Vaughan Marshall Anthony James McCarten Stella Margaret McCarten Allison McTaggart and Graham Richardson Merbein Investments Pty Ltd John Metcalf Mildura Equity Chambers Management Pty Ltd (ACN 005 063 294) Dennis Cameron Mills and Margot Barbara Mills Frank Modica Mourquong Co-op Rural Society Ltd Richard Kevin Munro and Helen Jean Munro Ian Murdoch and Robyn Joy Murdoch Nakorn Pty Ltd Rocco Panuccio Pasminco Limited Piave Sand & Earthmoving Mario Carmelo Ralli Ian Lewis Roberts Orazia Sapuppo and Patricia Sapuppo Janine Margaret Smith Rodger McLeod Smith and Anne Maree Smith Stanley Wine Co Pty Ltd Kenneth Edward Stubbs and Nannette Mary Stubbs Summer Gove Pty Ltd Table Grape Growers of Australia Pty Ltd Adam Thompson Triako Resources Limited (ABN 46 008 498 119) Gregory James Turner Stanley John Webley and Jennifer Jean Webley Western Murray Irrigation Limited Pamela Janette White Virginia Ann White P and J Whitfield Wilcannia Rural Lands Protection Board Peter Geoffrey Wilson Windtan Pty Ltd Alanford Pty Ltd Aljor Developments Pty ltd Roderick Campbell Baird and Alice Anne Baird Wayne Maxwell Barnfield and Delwyn Barnfield Jane Angel Benson Beven Pastoral Joseph Alan Bunyan Cantrade Pty Ltd Brian Wayne Casey and Joan Maree Casey Stephen Cresswell and Sophia Cresswell Peter Crisp Brian Patrick Michael Cullinan Estate of the late Sydney George Maynard Francis Fitzgerald, Michael James Fitzgerald, Peter Dennis Fitzgerald Robin Gebert and Margaret Gebert Diane Angel Gibson Grazing Investments Pty Ltd, John Alex Elliott and Dianne June Elliott trading as Moira Plains Co. Guiseppe Simonetta, Antony Simonetta, Mario Simonetta Mitchell James Harrison John Hederics Beverley Howse J. B Garde Nominees Pty Ltd (ACN 005 646 015), James Bruce Garde, Robert Bruce Garde Robert William Jolley and Evelyn Marjorie Jolley Steven James Kiel Donald Bach Langford Niki Lisandros and Konstatine Karanicolos Peter John Lush and Beverley Anne Lush Dudley Marrows Malcolm James Maynard Colin Michael Middleton Minda Proprietors Ian Morrison and Robyn Dianne Morrison Peter Neate and Raelene Neate Official Trustee in Bankruptcy of Estate of Kuzu (VIC 1910/1993) Ormond Murdoch McLeod and Roderick Murray McLeod Giuseppe Pagano and Elizabeth Pagano Powercor Australia Ltd Adrian Ribarits, Simon Ribarits, Anthony Ribarits Richard Ernest Danson, Heather Danson, Terrence Norman Jones, Judith Ann Danson (formerly McLauchlan), Helen Jean Munro Jeffrey Michael Smith and Susan Jane Smith Margaret Jean Smith and Daryl Francis Smith Tandou Limited Gregory Phillip Taylor John Gait Vagg Kevin John Voullaire; Margaret Patricia Voullaire; Ernst Henry Voullaire, Rodney James Voullaire Willaim Patrick Wilkes, Genevieve Katherine Wilkes, "Moornanyah" Pastoral Co P/L Acutt Holdings Pty Ltd Reginald James Hall; Thegoa Pastoral Co Pty Ltd Nicola Argiro Buronga Hill Pty Ltd Simeon Wines Limited Kevin Emmins and Glen Emmins AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/25.html


case_text: Section 85 of the NTA provides that a 'party may appear in person or may be represented by a barrister, a solicitor or, with the leave of the Federal Court, another person'. Although Messrs Lawson and Johnson are members of the applicant group they are not, as individuals, parties to this proceeding: see s 61(2) of the NTA. Nevertheless they are, effectively, the contradictors to the present motion. I am satisfied, therefore, that under the Court's power to do that which is incidental or necessary to the exercise of the powers conferred on it, in this case by s 66B of the NTA, I have jurisdiction to entertain the application for leave for Mr Dengate to appear. In Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 , Bennett J helpfully summarised the Court's 'inherent' power in this regard at [5]-[15]. While I would prefer to take the approach advocated in Parsons v Martin (1984) 5 FCR 235 at 241 and refer to this power as an 'incidental and necessary power of a statutory court' rather than as 'inherent', I respectfully accept her Honour's statement of the generally applicable principles.


case_title: Noble v Murgha [2005] FCAFC 211

case_text: Subsection 61(2) of the NTA provides that the persons authorised to make the claimant application by the native title claim group are jointly the 'applicant' and none of the other members of the native title claim group is the 'applicant'. This leads to the somewhat awkward situation where the term 'applicant' is applied to a group of separately named individuals: see Noble v Murgha [2005] FCAFC 211 at [6] . Other provisions of the NTA relevant to the present application are: ' 66B Replacing the applicant Application to replace applicant in claimant application (1) One or more members of the native title claim group (the claim group ) in relation to a claimant application, or of the compensation claim group (also the claim group ) in relation to a compensation application, may apply to the Federal Court for an order that the member, or the members jointly, replace the current applicant for the application on the grounds that: (a) either: (i) the current applicant is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it; or (ii) the current applicant has exceeded the authority given to him or her by the claim group to make the application and to deal with matters arising in relation to it; and (b) the member or members are authorised by the claim group to make the application and to deal with matters arising in relation to it. Court order (2) The Court may make the order if it is satisfied that the grounds are established.' ' 251B Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind.'


case_title: Parsons v Martin (1984) 5 FCR 235


case_text: It is pertinent to note, however, that the Court retains a discretion not to make the orders sought under s 66B of the NTA: see Ward v Northern Territory [2002] FCA 171 (' Ward ') at [16] and Daniel at [18].


case_title: Ward v Northern Territory of Australia (2003) 196 ALR 32


case_text: I do, however, consider that there was a considerable loss of time, inconvenience to the parties and the Court, and a wilful disregard to established law in the attempts to re-open the case (other than on the limited basis permitted) and in the application for a restraining order against Saxbys see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502. 29 I do not accept on the current material that the application to restrain Saxbys was necessarily to intimidate or harass Saxbys or its clients, although I do accept that there was no basis to support the legitimacy of such motion to disqualify. The allegations made against Saxbys were unsuccessful. In my view they were clearly unmeritorious, and to the extent possible, Saxbys should not be out of pocket see generally Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401; Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189 ; Australian Guarantee Corp Ltd v De Jager [1984] VR 483 at 502.


case_title: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397


case_text: The plaintiffs requested that Mr Fisher be ordered to pay the costs incurred in relation to the hearings after the conclusion of the hearing on 11 July 2007 (on the principles set out in Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178) because: (1) a considerable portion of time was wasted on the application to remove Saxbys which application was without merit; (2) the application for leave to reopen APM's case was seeking an indulgence and was without merit. 10 Further, I am not satisfied that the interests of justice require an order to be made against Mr Fisher where costs can be accommodated in accordance with the statutory regime or as part of the costs in the winding up see generally Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 and Symphony Group Plc v Hodgson [1994] QB 179 at 191-192 per Balcombe LJ.


case_text: Further, I am not satisfied that the interests of justice require an order to be made against Mr Fisher where costs can be accommodated in accordance with the statutory regime or as part of the costs in the winding up see generally Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 and Symphony Group Plc v Hodgson [1994] QB 179 at 191-192 per Balcombe LJ.


case_title: Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189


case_text: It was contended that Mr Fisher's conduct was unreasonable in the sense used by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 in that: (1) the applications were hopeless; (2) Mr Fisher conducted and managed the proceeding in disregard of any proper consideration of the prospects of success; and (3) no practitioner who was reasonably well-informed and competent would have so acted. 9 The application by APM to re-open was permitted on a limited basis, although the application by APM to remove Saxbys was unsuccessful. However, I am not satisfied that it is appropriate in the context of the applications made on behalf of APM or in the conduct of the proceedings generally, that I should make a cost order directly against Mr Fisher. I do not consider that Mr Fisher's own conduct has been demonstrated to be so unreasonable, or even that if the application against Saxbys was obviously without merit, that a costs order against Mr Fisher would be appropriate. I appreciate that Mr Fisher (as the director of APM) was granted leave to appeal the decision of Registrar Musset, but the hearing was to be treated de novo to consider the solvency of APM.


case_outcome: followed

case_text: I have before me the following exhibits to the affidavit of Douglas Charles Carter, sworn 21 April 2006: (a) the patent application dated 12 March 1998; (b) the advertising of the acceptance of the application on 9 December 1999; (c) the notice of opposition dated 7 March 2000; and (d) the decision of the delegate of the Commissioner of Patents dated 12 December 2002. These are the requisite documents to found the jurisdiction of the Court in an appeal under s 60(4): see Titan Mining & Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 (' Titan' ) at 75 per McLelland J. 3 The patent application in issue is entitled 'Ruminal Bolus for Electronic Identification of a Ruminant'. The specification relates to a bolus or large pill which is to be used in identifying ruminant animals. The device comprises a solid body composed of aluminium oxide which encloses electronic transmitting components. It is designed to be swallowed by the animal so that electro-magnetic data can be transmitted and then used for tracking and other management purposes. 4 The original respondent in the appeal, Aleis International Pty Ltd ('Aleis'), did not appear at the hearing. By affidavit sworn 13 March 2006, Mr Ian David Hughes, a partner of Deacons, the solicitors for Aleis, deposed that he had been instructed that Aleis wished to withdraw its appearance and take no further part in the appeal. Aleis instructed Deacons to file a notice seeking leave to do so. Mr Hughes also deposed that he held instructions to institute revocation proceedings in respect of any patent that might be granted to the appellant as the result of a successful appeal. Those revocation proceedings, according to Mr Hughes, are likely to raise various grounds of invalidity including fair basing, manner of manufacture and inventive step, prior use, prior publication and such other grounds as may be advised. 12 These submissions are made good by a number of authorities to which I was referred: Titan at 75-76; Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 (' Caroma' ) at 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 (' Brickwood' ) at 588-589 per King J. In Titan, McLelland J set out at 75-76 the approach that should be followed by the Court: 'Proceedings in the court on "appeal" from a decision of the Commissioner pursuant to s 60(5) are original proceedings and not an appeal in any technical sense. The duty of the Court in such proceedings is to exercise de novo the function of the Commissioner under s 60. The Court must exercise that function only on the basis of the evidence adduced in the proceedings before it. The material before the Commissioner or his delegate when he made the decision appealed from is not to be treated as being before the Court unless it is tendered and admitted in the proceedings before the Court (cf the Supreme Court Rules , Pt 81 , r 14). Evidence which was not before the Commissioner may also be admitted before the Court. The Court, exercising the function of the Commissioner, may take into account a ground of opposition specified in s 59 whether relied on by the opponent or not (see s 60(2)). This recognises that a decision under s 60 has a public aspect going beyond the mere resolution of a contest between the applicant and the opponent. This public aspect is further recognised by s 149 of the Act which contemplates active intervention by the Commissioner before the Court, with leave, in such proceedings as this. The non-appearance, or withdrawal, of the opponent provides an obvious occasion for such intervention where there are matters to which, in the public interest, the Commissioner desires to have the Court direct its attention. Where a ground of opposition depends on some fact being established, the onus of proof of that fact rests upon the party seeking to establish that ground of opposition, that is, the opponent or the Commissioner, as the case may be... Subject to its jurisdiction being established, the issue for the Court is, as it was for the Commissioner, whether the patent, if granted, would be clearly invalid on one of the relevant grounds. Unless invalidity on such a ground is clearly shown, the application should be allowed to proceed to a grant and the validity of the patent left to be determined in infringement or revocation proceedings.' 17 Mr McGowan has drawn my attention to the fact that the grounds available to the Court to refuse a patent application are all those available to an opponent, whether relied upon by the opponent or not: see s 60(3) of the Patents Act and Titan at 75. However, I agree with his submission that the grounds available can only be those which are supported by evidence or which do not require evidence. The only ground of opposition taken below was that of prior user, and no evidence capable of supporting that ground has been adduced before me. Nor has any cross-contention been filed that would raise any other issue. 18 I have also taken into account that s 20(1) of the Patents Act makes it clear that the grant of a patent is no guarantee of validity. Here, indeed, Mr Hughes' affidavit indicates that the original opponent intends to institute revocation proceedings. In those circumstances, there is, in my opinion, no reason why the Court need examine the merits of the opposition. That is particularly so where the Commissioner of Patents, who would normally raise public interest factors for the assistance of the Court, has indicated that it does not oppose the orders sought in the appeal. 19 Accordingly, I propose to make the orders sought by the appellant. There is no need, having regard to the authorities, for this Court to embark upon a consideration of the merits of an opposition that has not been pursued. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young. Associate: Dated: 13 June 2006 Counsel for the Applicant: G McGowan SC Solicitor for the Applicant: Maddocks Counsel for the Respondent: The respondent did not appear Date of Hearing: 16 May 2006 Date of Judgment: 16 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/706.html


case_text: An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum & Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ). 13 In Caroma , Walsh J was confronted with a situation like that of the present case, in that neither the respondent-opponent nor the Commissioner appeared. Walsh J found at 324-325: 'It was said that the only evidence to be taken into consideration in deciding the appeal is that tendered at the hearing and admitted by me. In my opinion that submission is correct. ...[T]he enactment that the Tribunal may admit further evidence ought not to be taken, in my opinion, as implying that the Tribunal must treat all evidence which has been given at a hearing before the Commissioner or his officer as being evidence in the proceeding before the Tribunal. As Kitto J. said in Kaiser Aluminum & Chemical Corporation v Reynolds Metal Co. [1969] HCA 7 ; (1969), 120 CLR 136, at p. 142, an appeal under s.60(5) of the Act is in truth an original proceeding and "it must be decided upon the evidence adduced before this Court". His Honour referred to some authorities dealing with the nature of the jurisdiction exercised by this Court in taxation "appeals". One of those authorities was Commissioner of Taxation v Finn [1960] HCA 69 ; (1960), 103 CLR 165. In that case, at pp. 167-168, Fullagar J. cited passages from the judgment of Williams J. in Federal Commission of Taxation v Sagar [1946] HCA 6 ; (1946), 71 CLR 421, at pp. 423-424, including the following passage: "The appeal is a proceeding in the original jurisdiction of the Court so that, unless the parties agree that the evidence given before the Board shall be used on the appeal, the evidence must be tendered again, and, as the appeal is a rehearing, further evidence can be called". In the present case the Supervising Examiner... who heard the matter, had before him two statutory declarations in support of the opposition. These have not been tendered before me. ... There has been no proof before me of any facts alleged in the statutory declarations supporting the opposition, except to the extent that the affidavit or oral evidence tendered on behalf of the appellant refers to those facts.'


case_text: An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum & Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ).


case_outcome: discussed

case_text: An appeal under s 60(4) of the Patents Act is an original proceeding in this Court and the hearing of an appeal is a hearing de novo : see Kaiser Aluminum & Chemical Corporation v Reynolds Metal Company [1969] HCA 7 ; (1969) 120 CLR 136 at 142; RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 at 340; and F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 ; (2000) 99 FCR 56 at 63 (' Hoffman-La Roche' ). 10 In an appeal, the issue for decision would be whether, if granted, the patent would be clearly invalid. The authorities dealing with the issues that arise in an appeal and the onus of proof are canvassed by Emmett J in Hoffman-La Roche , particularly at 66-70 [48]-[66]. Emmett J arrived at the following conclusion at 70 [67]: 'The language employed in the cases to which I have referred suggest that it should appear clear to the Court that no patent granted in respect of the specification would be valid. I consider that, before the Court would uphold an opposition to the grant of a patent, the Court should be clearly satisfied that the patent, if granted, would not be valid.' 11 The appellant submitted that the appeal should be allowed and the patent application should proceed to grant essentially because the onus is on the now-withdrawn opponent to make out the opposition and, in this proceeding, the opponent has neither tendered nor adduced any evidence before this Court capable of discharging its onus. In those circumstances, the accepted patent application stands unchallenged and it was submitted that it must be allowed to proceed to grant.