case_outcome: discussed

case_text: A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him. 18 Finally, the plaintiffs seek to distinguish Lai Qin and One.Tel upon the basis that they presently ask for summary judgment or judgment on admissions and not a trial. I see no merit in that argument. In preparing for such an application costs will be incurred by both sides. In some cases those costs may be relatively insignificant. In others they may be substantial. The policy considerations supporting the decisions to which I have referred are as relevant to these applications as they are to trials. 20 The plaintiffs submit that if they are not entitled to summary judgment they are nonetheless entitled, in claiming costs, to seek to demonstrate that they would probably have won had the actions gone to judgment. They rely on the same matters as they rely upon in connection with the summary judgment application plus some aspects of the evidence filed in anticipation of a trial. Their position seems to be that Giant Marine ought to have responded to that evidence, and that its failure to do so demonstrates that their evidence ought to be accepted. There is an incongruity between such an approach and the decisions in Lai Qin and One.Tel to which I have previously referred. If the parties are to call and cross-examine witnesses, then the process starts to look very much like a trial on the merits for the sole purpose of deciding questions of costs. The plaintiffs' approach also ignores the possibility that even in the absence of contrary evidence, their evidence may have been discredited in cross-examination. 21 In Lai Qin (supra), McHugh J said: In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the cost of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence the litigation. ... Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission ... where his Honour ordered the respondent to pay 80 per cent of the applicant's fixed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare. If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the Court will make no order as to the cost of the proceeding. This approach has been adopted in a large number of cases. 22 McHugh J was speaking in the context of a case in which the ultimate relief sought by the applicant had been obtained without the need for continued litigation. The court was fully aware of the basis upon which the matter was to be discontinued. In many cases the court will be told simply that the matter has been settled without any reference to the terms of settlement. In other cases the terms of settlement may say little or nothing about the relative merits of the case had it gone to trial. It seems unlikely that McHugh J, in referring to the likelihood of success, meant to suggest that such likelihood should be assessed by detailed reference to the evidence which would have been called had the matter gone to trial. Such an approach would be inconsistent with the second and third sentences in the above extract. McHugh J probably had in mind a settlement which occurred after a substantial part of the evidence had been heard. 23 In any event, even on the plaintiffs' approach, I am far from satisfied that they would probably have succeeded. Such anticipated success is said to be based upon the fact that Giant Marine admitted that the damage to the two vessels was ultimately caused by the failure of the discharge pipe and/or the defective fender and that Adsteam had failed to take reasonable care in the management of the tug by failing to detect such defects. The plaintiffs assert that Giant Marine is liable for Adsteam's negligence by virtue of the Standard Conditions. It is common ground that such conditions were part of the contract between Giant Marine and Adsteam. Clauses 3 and 4 are as follows: 3. Whilst towing or whilst at the request, express or implied, of the Hirer, rendering any service other than towing, the mater and crew of the tug or tender shall be deemed to be the servants of the Hirer and under the control of the Hirer and/or his servants and/or his agents and anyone on board the Hirer's vessel who may be employed and/or paid by the Tugowner shall likewise be deemed to be the servant of the Hirer and the Hirer shall accordingly be vicariously liable for any act or omission by any such person so deemed to be the servant of the Hirer. 4. Whilst towing, or whist at the request, either express or implied of the Hirer, rendering any service of whatsoever nature other than towing:- (a) The Tugowner shall not be responsible for or be liable (i.) for damage of any description done by or to the tug or tender, or done by or to the Hirer's vessel or done by or to any cargo or other thing on board or being loaded on board or intended to be loaded on board the Hirer's vessel or the tug or tender or by or to any other object or property; or (ii.) for loss of the tug or tender or the Hirer's vessel or of any cargo or other thing on board or being loaded on board or intended to be loaded on board the Hirer's vessel or the tug or tender or any other object or property; or (iii.) for any personal injury or loss of life howsoever and wheresoever caused including personal injury or loss of life of the master and/or crew of and/or any person on board the tug or tender; or (iv.) for any claim by a person not a party to that agreement for loss or damage of any description whatsoever. arising from any cause, including (without prejudice to the generality of the foregoing) negligence at any time of the Tugowner's servants or agents, unseaworthiness, unfitness or breakdown of the tug or tender, its machinery, boilers, towing gear, equipment, lines, ropes or hawsers, lack of fuel, stores, speed or otherwise, and (b) The Hirer shall be responsible for, pay for and indemnify the Tugowner against and in respect of any loss or damage and any claims of whatsoever nature or howsoever arising or caused whether covered by the provisions of clause 4(a) hereof or not (including any arising from or caused by the negligence of the Tugowner or his servants or agents) including the loss of or damage to the tug or tender, provided that the Hirer shall not be liable to the Tugowner for or in respect of loss, damage or claims which the Hirer proves (the burden of proof being on the Hirer) to have been solely caused by the failure of the Tugowner, and due to the actual fault or privity of the Tugowner, to make his tug or tender seaworthy for the towage or service other than towage. Provided however, notwithstanding anything, hereinbefore contained, the Tugowner shall under no circumstances be responsible for or be liable for any loss or damage caused or contributed to, by or arising out of any delay or detention of the Hirer's vessel or of the cargo on board or being loaded on board or intended to be loaded on board the Hirer's vessel or of any other object or property or of any person, or any consequences thereof, whether or not the same shall be caused or arise whilst towing or whilst at the request, either express or implied of the Hirer, rendering any service of whatsoever nature other than towing or at any other time whether before during or after the making of this agreement. 24 The following definitions contained in cl 1 are also relevant: "towing" is any operation in connection with the holding, pushing, pulling, moving, escorting or guiding of the Hirer's vessel and the expression "to tow", "being towed" and "towage" shall be defined likewise. The expression "whilst towing" shall cover the period commencing when the tug or tender is in a position to receive orders direct from the Hirer's vessel to commence pushing, holding, moving, escorting or guiding the vessel or to pick up ropes or lines or when the tow rope has been passed to or by the tug or tender whichever is the sooner and ending when the final orders from the Hirer's vessel to cease pushing, holding, moving, escorting or guiding the vessel or to cast off ropes or lines has been carried out or how the tow rope has been finally slipped, whichever is the later, and the tug or tender is safely clear of the vessel. 41 I deal firstly with costs incurred prior to Adsteam's payments. Clearly, the reasonableness of the parties' conduct is a relevant consideration in determining the question of costs. McHugh J said as much in Lai Qin (supra). The plaintiffs submit that Giant Marine was unreasonable in not admitting negligence, unseaworthiness of the tug and damages. Giant Marine submits that the plaintiffs were unreasonable in failing to join Adsteam at an earlier stage in the proceedings. These two matters are closely related. Giant Marine also seeks to rely upon certain offers to settle made in the correspondence between the solicitors. 42 At one stage I expressed surprise at Adsteam's absence from the proceedings. At some time thereafter Adsteam was joined. My concern arose largely out of the fact that it seemed clear that the collision had been, at least substantially, caused by mechanical failure on the tug. The plaintiffs assert that their failure to join Adsteam at an earlier stage was the product of reasonable caution, designed to avoid the incurrence of unnecessary costs, given that they considered their cases against Giant Marine to be strong. That view was based upon an unrealistic assessment of the likelihood of establishing vicarious liability in Giant Marine. Although I disagree with the view taken by the plaintiffs, it was a matter of judgment. In any event, even if Adsteam had been joined earlier, it may not have paid earlier. Giant Marine's costs were incurred in defending proceedings brought against it. I am unable to conclude that such costs would not have been incurred had Adsteam been joined at an earlier stage. 43 Giant Marine's conduct in defending the actions must also be seen in light of the late joinder of Adsteam. From an early stage it was obvious that mechanical failure on the tug was the primary, if not the sole, cause of the plaintiffs' losses. It is reasonable to infer that Giant Marine would, if held liable, have looked to Adsteam for contribution or indemnity, subject to issues arising out of the Standard Conditions and any complications arising out of insurance arrangements. In those circumstances, Giant Marine could not safely make concessions as to liability or damages without reference to Adsteam. Adsteam's absence from the proceedings did not prevent Giant Marine from raising such matters with it, but Adsteam may have been reluctant to become involved. Further, despite the plaintiffs' views concerning the strengths of their respective cases, Giant Marine had reasonable prospects of success in resisting any finding of liability. In those circumstances I cannot see that it acted unreasonably in putting the plaintiffs to proof on all issues.


case_text: A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him. 18 Finally, the plaintiffs seek to distinguish Lai Qin and One.Tel upon the basis that they presently ask for summary judgment or judgment on admissions and not a trial. I see no merit in that argument. In preparing for such an application costs will be incurred by both sides. In some cases those costs may be relatively insignificant. In others they may be substantial. The policy considerations supporting the decisions to which I have referred are as relevant to these applications as they are to trials. 20 The plaintiffs submit that if they are not entitled to summary judgment they are nonetheless entitled, in claiming costs, to seek to demonstrate that they would probably have won had the actions gone to judgment. They rely on the same matters as they rely upon in connection with the summary judgment application plus some aspects of the evidence filed in anticipation of a trial. Their position seems to be that Giant Marine ought to have responded to that evidence, and that its failure to do so demonstrates that their evidence ought to be accepted. There is an incongruity between such an approach and the decisions in Lai Qin and One.Tel to which I have previously referred. If the parties are to call and cross-examine witnesses, then the process starts to look very much like a trial on the merits for the sole purpose of deciding questions of costs. The plaintiffs' approach also ignores the possibility that even in the absence of contrary evidence, their evidence may have been discredited in cross-examination.


case_outcome: applied

case_text: A court should not engage upon a determination of the merits of the case where the only outstanding claim is as to costs. See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 and One.Tel Ltd v Commissioner of Taxation [2000] FCA 270 ; (2000) 101 FCR 548 at 552-553. Those cases also demonstrate that a court may inquire as to the reasonableness of the conduct of the parties to ascertain whether or not orders for costs should be made. Those cases would have no point if it were open to a party to ask the court to make a judgment in the very general form suggested by counsel. That in the present actions against Giant Marine, the Adsteam payments have disposed of all issues other than costs appears from the decision of the High Court in Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 per Gleeson CJ and Callinan J at [38], [39], [40], [43], [46] and [47] and per Gummow and Hayne JJ at [55] and [56]. In particular it should be noted that Gummow and Hayne JJ approved the statement of "general principle" contained in the passage cited at [56] from the judgment of Auld LJ in Jameson v Central Electricity Generating Board [1998] QB 323. That general principle is: Where accord and satisfaction cannot be relied upon, as where a claimant settles with only one of two concurrent tortfeasors, the tortfeasor facing a claim will nevertheless have a defence if the plaintiff's settlement with the other has fully compensated him for the separate wrongs done to him.


case_title: Jameson v Central Electricity Generating Board [1998] QB 323


case_outcome: cited

case_text: In any event the plaintiffs may face substantial difficulty in seeking to establish their claims to maritime liens. They assert that their liens are for damage done to the vessels by the oil spillage. Such a lien is recognized by subs 15(2) of the Admiralty Act and in the textbooks and cases dealing with maritime liens. See, for example, Bankers Trust International Ltd v Todd Shipyards Corporation; "The Halcyon Isle" [1981] AC 221 at 232-233. However the circumstances in which a lien arises for "damage done by a ship" are limited. Currie v M'Knight [1897] AC 97 establishes that the damage must be "the fault of the ship itself", that is the ship against which liability is alleged. See also the observations of Lord Herschell at 108 and Lord Morris at 109-110. In "The Eschersheim " [1976] 1 WLR 430 at 438 Lord Diplock applied the decision in Currie v M'Knight in construing a statutory provision similar to para 4(3)(a) of the Admiralty Act . The facts of that case were similar to those in the present actions. In Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov " [2000] FCA 507 ; (2000) 172 ALR 481 , the Full Court applied " The Eschersheim ", although in a somewhat different context. These cases might suggest that in the present case, the damage caused by the tug was not damage done by Global Peace which would give rise to such maritime liens. However it is not necessary to take the matter any further.


case_outcome: considered

case_title: Currie v M'Knight [1896] AC 97


case_title: "The Eschersheim" [1976] 1 WLR 430


case_title: Opal Maritime Agencies Pty Ltd v Proceeds of Sale of Vessel MV "Skulptor Konenkov" [2000] FCA 507 ; (2000) 172 ALR 481


case_outcome: distinguished

case_text: The plaintiffs submit that these provisions result in Giant Marine being vicariously liable for the damage inflicted upon their vessels. I do not accept that proposition. The plaintiffs have not demonstrated any proper basis for their being permitted to enforce the terms of a contract to which they are not parties. Reference was made to the decision of the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. In that case an insurer under a public liability insurance policy agreed to indemnify a company against liability for injury to persons at specified building sites. "The insured" was defined to include the company's contractors. A person was injured as the result of the negligence of a contractor which had not been a contractor when the policy was issued. That person recovered damages against the contractor. The majority of the High Court held that the contractor was entitled to relief against the insurer. However the reasons of the various members of the Court offer little assistance to the plaintiffs for present purposes. 26 Mason CJ and Wilson J said at 123-4: In the ultimate analysis the limited question we have to decide is whether the old rules [concerning privity of contract] apply to a policy of insurance. The injustice which would flow from such a result arises not only from its failure to give effect to the expressed intention of the person who takes out the insurance but also from the common intention of the parties and the circumstance that others, aware of the existence of the policy, will order their affairs accordingly. We doubt that the doctrine of estoppel provides an adequate protection of the legitimate expectations of such persons and, even if it does, the rights of persons under a policy of insurance should not be made to depend on the vagaries of such an intricate doctrine. In the nature of things the likelihood of some degree of reliance on the part of the third party in the case of a benefit to be provided for him under insurance policy is so tangible that the common law rule should be shaped with that likelihood in mind. This argument has even greater force when it is applied to an insurance against liabilities which is expressed to cover the insured and its subcontractors. It stands to reason that many subcontractors will assume that such an insurance is an effective indemnity in their favour and that they will refrain from making their own arrangements for insurance on that footing. That it seems is what happened in the present case. But why should the respondent's rights depend entirely on its ability to make out a case of estoppel? In the circumstances, notwithstanding the caution with which the Court ordinarily will review earlier authorities and the operation of long-established principle we conclude that the principled development of the law requires that it be recognized that McNiece was entitled to succeed in the action. 27 In other words, their Honours considered that there should, in the case of insurance policies, be an exception to the general rules relating to privity of contract, particularly where the policy contemplates the relevant claimant having the benefit of the cover, it knows of the policy and organizes its affairs accordingly. Speaking loosely, it might be said that pursuant to cl 4, Giant Marine "insured" Adsteam against certain loss, but it is fairly clear that Mason CJ and Wilson J were speaking only of insurance policies, properly so called. I see no justification for further extending the exception which their Honours were willing to make to a fundamental aspect of the law of contract. 28 Brennan and Dawson JJ both concluded that the contractor was not entitled to enforce the indemnity and ought fail in the action. Deane J considered that the contractor was not entitled to enforce the indemnity but might be able to demonstrate that the policy created a trust in its favour. The approach adopted by Toohey J (at 172) was similar to that adopted by Mason CJ and Wilson J. Gaudron J agreed generally with Mason CJ and Wilson J but differed from them in "two significant respects". Her Honour said at 173: In my view a promisor who has accepted an agreed consideration for a promise to benefit a third party comes under an obligation to the third party to fulfil that promise and the third party acquires a right to bring an action to secure the benefit of that promise. The right of third party is not a right to sue on the contract: rather, it is a right independent of, but ordinarily corresponding in content and duration with, the obligation owed under the contract by the promisor to the promisee. The doctrine of privity of contract and the related requirement that consideration should be provided by the person seeking to enforce a contractual obligation do not deny the binding nature of a contractual promise the performance of which will benefit a third party. Breach of the contractual obligation may sound in damages at the suit of the promisee. However, it is not clear on existing authority whether the promisee is restricted to recovering damages for his loss only or whether the damages can also be recovered by the promisee for the third party's loss ... If damages are an inadequate remedy, the promisee may obtain a degree of specific performance of the contract ... The third party, however, cannot institute an action for breach of contract or for specific performance unless he can bring himself within one of the recognized exceptions to or qualifications of the rules. 29 To my mind none of the reasons supports the plaintiffs' present claims. There was no insurance policy, and so the views expressed by Mason CJ, Wilson and Toohey JJ do not apply. No attempt has been made to establish the existence of a trust. It cannot be said that either Adsteam or Giant Marine intended to benefit third parties such as the plaintiffs when they entered into the contract. At a relatively late stage in proceedings the plaintiffs sought to rely upon provisions in the Property Law Act 1974 (Qld) relating to contracts for the benefit of third parties. However no attempt has been made to plead or prove that either Giant Marine or Adsteam made any promise for the benefit of third parties such as the plaintiffs. 30 Clause 3 offers some evidence that the relationship between Giant Marine and Adsteam's employees on the tug was that of master and servant, but that is unlikely to have been the case. It is unlikely, for example, that Giant Marine was under any contractual or other obligation to pay the employees' wages. It is also unlikely that the employees would have understood that they were to obey direct instructions received from Giant Marine or its agents, rather than instructions relayed to them through the tug master. Further, it is unlikely that Giant Marine or Adsteam intended such results. Whilst the tug and the tug master may have been subject to directions by the pilot and the master of "Global Peace", it is difficult to avoid the conclusion that the tug master was obliged to exercise his own judgment in the operation of the tug, having regard to his obligations to Adsteam and the crew. Crew members were obliged to follow the tug master's directions. Clause 3 should be construed as regulating the relationship between Giant Marine and Adsteam and not that between either of them and the master and crew of the tug. 31 It is also important to keep in mind that cl 3 applies only during towing or whilst other services are being provided. I have already set out the definition of "towing". At most Giant Marine would bear vicarious liability for conduct occurring during the towing operation. Whilst Giant Marine has admitted that the owner of the tug failed to take reasonable care in its management, both with respect to the discharge pipe and with respect to the fender, it is not clear to me that such failure occurred during the berthing operation. I have briefly considered the evidence of the expert witnesses McAuley, Boulton and Crawford. That evidence seems to be more consistent with a design and system failure prior to, and at the time of, start up of the engines than with negligent conduct by the master and/or the crew during towing. 32 For these reasons Giant Marine's admission that Adsteam was negligent does not establish crew negligence for which it might arguably be liable as a result of cl 3. To establish any such negligence it would be necessary to go to the evidence. Even if, contrary to my initial impressions, the evidence establishes crew negligence, there is still the question of the extent to which I should go in assessing the possible outcomes in these actions had they gone to trial. As I have said, the plaintiffs assert that Giant Marine ought to have responded to their evidence, and that its failure to do so demonstrates that such evidence ought be accepted for present purposes. That assertion assumes that the plaintiffs are, in effect, entitled to insist upon trials of these issues, notwithstanding the fact that they are now entirely academic. It also overlooks the possibility that Giant Marine may have discredited the expert evidence by cross-examination rather than by calling its own evidence. I am not satisfied that the plaintiffs would have succeeded on the question of vicarious liability or on that of crew negligence. I accept that they had arguable, although not strong, cases. 33 I am unpersuaded that the plaintiffs can enforce cl 4 of the Standard Conditions against Giant Marine. I see no basis for so doing. I should also draw attention to the fact that cl 4 excludes liability for damage caused in the event of unseaworthiness brought about by default of the tug owner. Giant Marine indicated in its pleading its intention to rely upon this exclusion. On the material such a defence cannot be discounted.


case_title: The Niobe (1888) 13 PD 55

case_text: The plaintiffs also seek, by reference to earlier decisions, to establish that under general principles of admiralty law, a vessel under tow is vicariously liable for damage done by the tug. The plaintiffs rely primarily upon the decision in The Niobe (1888) 13 PD 55. However that case, taken at its highest, does not support the proposition. The case appears to have been decided upon the basis of actual negligence on the part of the master of the vessel under tow. The President doubted "if the questions of law which have been discussed before me arise upon this occasion ...". Nonetheless his Lordship went on to consider the general question of liability as between tug and tow, observing at 59: But it appears to me that the authorities clearly establish the tow has, under the ordinary contract of towage control over the tug. The tug and tow are engaged in a common undertaking, of which the general management and command belongs to the tow, and in order that she should efficiently execute this command it is necessary that she should have a good look-out and should not merely allow herself to be drawn, or the tug to go, in a course which would cause damage to another vessel. As Dr. Lushington has pointed out, it is essential for the safety of vessels being towed that there should not be a divided command, and convenience has established that the undivided authority shall belong to the tow. The pilot, if there be one, takes his station on his tow, and the officers of the tow are usually, as in the present case, of a higher class and better able to direct the navigation than those of the tug. 35 At p 60 his Lordship continued: ... I may observe that it is clear from the evidence in this case that it was perfectly well understood by the captains of the tug and tow that the latter had the control of their movements, and that it was the duty of those navigating the tow to keep a look-out and check the tug if it were going wrong. 36 His Lordship also observed: If it had been shewn that the "Flying Serpent" had, by some sudden manoeuvre, which those on board the "Niobe" could not control, brought about the collision, I should have held the "Niobe" blameless.


case_title: The Quickstep (1890) 15 PD 196

case_text: The case is authority for the proposition that the master of the tow must accept responsibility for the way in which the towing operation is conducted. He must keep a proper lookout and direct the tug appropriately. It does not follow from that decision that the tow will be responsible for actions by the tug over which it has no control. As much also appears from other cases referred to in argument. In The Quickstep (1890) 15 PD 196 at 199 Butt J said, in delivering the reasons of a Divisional Court: No doubt in many cases of towage the negligence relied on as making the owners of the vessel in tow liable for a collision has been the negligence of those on board the tug; and where, as in most of such cases, the navigation was under the direction of those on board the vessel being towed, such negligence has been rightly held to be in law the negligence of her owners. ... In all such cases, however, the real question is whether or not the relation of master and servant exists between the defendants, the owners of the vessel towed, and the persons in charge of the navigation of the steam-tug. Unless that relation exists, considerations of expediency cannot avail to impose liability on the owners of the vessel in tow. 38 At 200 his Lordship observed: The truth is, no general rule can be laid down. The question whether the crew of the tug are to be regarded as the servants of the owner of the vessel in tow must depend upon the circumstances in each case. 39 In Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634 at 645, Viscount Haldane LC approved the proposition advanced by Butt J in The Quickstep . At 648 Lord Ashbourne said: There is nothing in the facts of this case to make the tow responsible for the navigation of the tug. This is not a question of law, but a question of fact, to be determined in each case on its own circumstances. See also The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57 at 67 (per Willmer J).


case_text: In Owners of the "SS Devonshire" v Owners of the Barge "Leslie" [1912] AC 634 at 645, Viscount Haldane LC approved the proposition advanced by Butt J in The Quickstep . At 648 Lord Ashbourne said: There is nothing in the facts of this case to make the tow responsible for the navigation of the tug. This is not a question of law, but a question of fact, to be determined in each case on its own circumstances. See also The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57 at 67 (per Willmer J).


case_title: The MSC Panther and the Ericbank [1957] 1 Lloyds Rep 57


case_text: In other words, one can look to the circumstances in which the subject entity was formed and the manner in which it is fulfilling the purposes for which it was incorporated, but there remains the issue of whether one can examine the subjective motives and intentions of the promoters of the subject entity and its directors for the purpose of ascertaining if the statutory exemption from income tax operates. In Cronulla Sutherland Leagues Club 23 FCR at 98, Lockhart J referred to this issue by reference to the decision of the High Court in Brookton Co-operative Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 where the ultimate issue was whether the taxpayer was a co-operative company within the meaning of s 117 of the ITAA 1936. One of the elements of the statutory definition was that the company 'is established for the purpose of carrying on any business having as its primary object or objects one or more of the following ... [objects]'. 211 The diversity of opinion in Brookton had previously been commented on by Ormiston J of the Supreme Court of Victoria in SSAU Nominees Pty Ltd v Federal Commissioner of Taxation (1985) 16 ATR 992 at 1011: 'Here it is clear that all members of the court on each occasion [Brookton and Ruffy] held the view that the primary object or objects of the appellant's business could not be determined solely, or even initially, by reference to its memorandum of association, and that evidence of its history, setting up and activities, had to be examined. In this instance Mason J (at 453), with the concurrence of Wilson J, thought that the intentions, if not the motives, of the promoters could be looked at, although Aickin J strongly disagreed: at 463.'


case_outcome: referred to

case_text: These appeals were heard immediately following the hearing of the appeals by Business and Research Management Limited (in liquidation) ('BARM'). Notwithstanding that the issues in these appeals are not coterminous with the issues in the BARM appeals, there is a possible common issue and they arise out of the same factual background, which is set out in [4] [41] of the reasons for judgment in Business & Research Management Pty Ltd v Commissioner of Taxation [2008] FCA 1652. The roles of ATTORI and AARI as the researchers in the Budplan projects are referred to at various parts of that background. In particular, it is noted at [8(3)] that ATTORI was engaged to conduct research and development for all projects except for Budplan 'A' Series No. 1 and Personal Budplan No. 5, where AARI was engaged to conduct the research and development activities. Unless the context indicates otherwise, terms defined in the BARM reasons that are used in these reasons, have the same meaning. 3 While the issue in the BARM appeals concerned the quantum of the management fees to be brought to account as assessable income in the hands of BARM, the issue of the quantum of the research fees to be brought to account as assessable income in the hands of ATTORI or AARI only arises if the income of ATTORI or AARI is not exempt from income tax on the ground referred to below. 4 There is at least one, but possibly two issues before the Court. 227 This is the same issue that arose, was considered and decided in Business & Research Management Pty Ltd v Commissioner of Taxation [2008] FCA 1652 in respect of the management fees. Here, it is in respect of the research fees, but it arises out of the same factual background. 228 While the arguments in the present case were not identical to those that were ventilated in the BARM case, they do traverse common ground. For the reasons given in that case, the applicants in the present case cannot succeed on this issue. 229 The applications must be dismissed with costs. I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 14 November 2008 Counsel for the Applicant: Mr AH Slater QC and Mr PM Fraser and Mr BL Jones Solicitor for the Applicant: BWS Lawyers Counsel for the Respondent: Mr BJ Sullivan SC, Mr TM Thawley and Ms M Hirschorn Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 and 16 April 2008 Date of Judgment: 14 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1653.html


case_text: SSAU Nominees involved a claim for a sales tax exemption for 'goods for use ... by a society, institution or organisation established and carried on exclusively or principally for the promotion of the interests of a university or school conducted by an organisation not carried on for the profit of an individual'. Some 17 years later, Mandie J of the Supreme Court of Victoria said in Capital Club Pty Ltd v Commissioner of State Revenue (2007) 66 ATR 606 at [41]: 'Ormiston J referred to Ruffy and Brookton noting that the High Court held the view that the primary object or objects of the company's business could not be determined solely or even initially by reference to its Memorandum of Association and that evidence of its history, setting up and activities had to be examined. The case otherwise turned on its own facts and the particular legislation.'


case_text: A more detailed and complete analysis of their Honours' respective reasons is given by Lockhart J presiding on a Full Court of this Court in Cronulla Sutherland Leagues Club Limited v Commissioner of Taxation (1990) 23 FCR 82 at 90 93; see too, Beaumont J at 111 113 and 117, and Foster J at 123. 201 See, also, Cronulla Sutherland Leagues Club 23 FCR at 117 per Beaumont J. 202 In the Surgeons' Case , Starke J at 448 indicated that it was permissible to look outside the objects of the entity to its activities in determining whether the qualification for exemption was met, at least where the memorandum did not make it clear which objects of a mixed character are its main or dominating characteristics. 203 Williams J went further when, at 452, he observed: '[I]n order to determine what is the main or dominant purpose of the College, it is a mistake to examine the objects contained in the memorandum in ... [a] disjunctive fashion. They should be examined in conjunction with one another and in the light of the circumstances in which the College was formed and of the manner in which the College is fulfilling the purposes for which it was incorporated.' 204 In other words, one can look to the circumstances in which the subject entity was formed and the manner in which it is fulfilling the purposes for which it was incorporated, but there remains the issue of whether one can examine the subjective motives and intentions of the promoters of the subject entity and its directors for the purpose of ascertaining if the statutory exemption from income tax operates. In Cronulla Sutherland Leagues Club 23 FCR at 98, Lockhart J referred to this issue by reference to the decision of the High Court in Brookton Co-operative Society Ltd v Commissioner of Taxation (Cth) [1981] HCA 28 ; (1981) 147 CLR 441 where the ultimate issue was whether the taxpayer was a co-operative company within the meaning of s 117 of the ITAA 1936. One of the elements of the statutory definition was that the company 'is established for the purpose of carrying on any business having as its primary object or objects one or more of the following ... [objects]'.


case_text: While the ultimate issue in the present case is the same as it was in the Surgeons' Case , the real or substantive underlying issues are not. In the Surgeons' Case it was, according to Starke J at 447, '... rightly conceded, that the College was an institution'. And in Federal Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 , Allsop J noted at [8] and [9] that there was no dispute that 'Word' was an institution; the only question was whether it was a 'charitable institution'. In the present case, there is a real issue as to whether ATTORI and AARI are institutions. As Gibbs CJ observed in Stratton v Simpson [1970] HCA 45 ; (1970) 125 CLR 138 at 158: 'Although its meaning must depend on its context, [an institution] would not ordinarily connote a mere trust.' 199 Nevertheless, it is unnecessary to break the task up into component parts: Is it an institution? And if so, is it a scientific institution? Rather, as Allsop J said in Word Investments at [14]: 'The relevant task, as stated in the Surgeons' Case [1943] HCA 34 ; 68 CLR 436 , is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic inquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.'


case_text: The mere fact that ATTORI and AARI are companies limited by guarantee does not make them institutions; any more than the fact that they call themselves an 'Institute': see Pamas Foundation (Inc) v Commissioner of Taxation [1992] FCA 154 ; (1992) 35 FCR 117 at 125 per Beaumont and Lee JJ. As their Honours there said in the immediately preceding sentence: 'The context in which the expression "religious institution" appears includes the juxtaposed term "public benevolent institution" which tends to suggest that the word "institution" is to be given a meaning greater than a structure controlled and operated by family members and friends.'


case_title: Royal Australasian College of Surgeons v Federal Commissioner of Taxation [1943] HCA 34 ; (1943) 68 CLR 436

case_text: The relevant facts are not in dispute, although there is an issue as to what is relevant and what is not. It is common ground that facts going to: '[W]hat is the true nature and the objects and activities of the [entity]', to use the words of the Lord President (Clyde) in The Commissioner of Inland Revenue v The Aberdeen Medico-Chirurgical Society (1931) 16 TC 237 at 249 quoted with approval by Latham CJ in Royal Australasian College of Surgeons v Federal Commissioner of Taxation ('the Surgeons' Case ') [1943] HCA 34 ; (1943) 68 CLR 436 at 444, are relevant. But the Commissioner says that facts going to the commercial imperatives that drove both the entity's incorporation and its activities, as well as the arrangements through which, or the manner in which, it carries on its activities, and the lack of public availability or utility of the results of those activities, reflect on the 'true nature' of ATTORI and AARI and their activities and for that reason, are also relevant. 199 Nevertheless, it is unnecessary to break the task up into component parts: Is it an institution? And if so, is it a scientific institution? Rather, as Allsop J said in Word Investments at [14]: 'The relevant task, as stated in the Surgeons' Case [1943] HCA 34 ; 68 CLR 436 , is to assess the true character or nature of the entity by reference to its objects, purposes and activities. It is an integrated, holistic inquiry directed to whether a body of facts and circumstances satisfies a legal category or conception.'


case_text: The diversity of opinion in Brookton had previously been commented on by Ormiston J of the Supreme Court of Victoria in SSAU Nominees Pty Ltd v Federal Commissioner of Taxation (1985) 16 ATR 992 at 1011: 'Here it is clear that all members of the court on each occasion [Brookton and Ruffy] held the view that the primary object or objects of the appellant's business could not be determined solely, or even initially, by reference to its memorandum of association, and that evidence of its history, setting up and activities, had to be examined. In this instance Mason J (at 453), with the concurrence of Wilson J, thought that the intentions, if not the motives, of the promoters could be looked at, although Aickin J strongly disagreed: at 463.' 214 SSAU Nominees involved a claim for a sales tax exemption for 'goods for use ... by a society, institution or organisation established and carried on exclusively or principally for the promotion of the interests of a university or school conducted by an organisation not carried on for the profit of an individual'. Some 17 years later, Mandie J of the Supreme Court of Victoria said in Capital Club Pty Ltd v Commissioner of State Revenue (2007) 66 ATR 606 at [41]: 'Ormiston J referred to Ruffy and Brookton noting that the High Court held the view that the primary object or objects of the company's business could not be determined solely or even initially by reference to its Memorandum of Association and that evidence of its history, setting up and activities had to be examined. The case otherwise turned on its own facts and the particular legislation.'


case_text: While the ultimate issue in the present case is the same as it was in the Surgeons' Case , the real or substantive underlying issues are not. In the Surgeons' Case it was, according to Starke J at 447, '... rightly conceded, that the College was an institution'. And in Federal Commissioner of Taxation v Word Investments Ltd (2007) 164 FCR 194 , Allsop J noted at [8] and [9] that there was no dispute that 'Word' was an institution; the only question was whether it was a 'charitable institution'. In the present case, there is a real issue as to whether ATTORI and AARI are institutions. As Gibbs CJ observed in Stratton v Simpson [1970] HCA 45 ; (1970) 125 CLR 138 at 158: 'Although its meaning must depend on its context, [an institution] would not ordinarily connote a mere trust.' 198 As Gibbs CJ further observed in Stratton v Simpson 125 CLR at 158: 'In its ordinary sense "institution" means "an establishment, organization, or association, instituted for the promotion of some object, especially one of public utility, religious, charitable, educational etc." (The Shorter Oxford English Dictionary).' This suggests to me that before an entity can be a 'scientific institution', it must be established for an object or objects of public utility. 205 Gibbs CJ did not find it necessary to decide whether, in considering whether a company came within s 117(1) , the subjective motives and intentions of the promoters should be taken into account, although he said that it was clear that the court must consider the activities that the company actually carried on (at 445).


case_text: The relevant facts are not in dispute, although there is an issue as to what is relevant and what is not. It is common ground that facts going to: '[W]hat is the true nature and the objects and activities of the [entity]', to use the words of the Lord President (Clyde) in The Commissioner of Inland Revenue v The Aberdeen Medico-Chirurgical Society (1931) 16 TC 237 at 249 quoted with approval by Latham CJ in Royal Australasian College of Surgeons v Federal Commissioner of Taxation ('the Surgeons' Case ') [1943] HCA 34 ; (1943) 68 CLR 436 at 444, are relevant. But the Commissioner says that facts going to the commercial imperatives that drove both the entity's incorporation and its activities, as well as the arrangements through which, or the manner in which, it carries on its activities, and the lack of public availability or utility of the results of those activities, reflect on the 'true nature' of ATTORI and AARI and their activities and for that reason, are also relevant.


case_text: Importantly, proceeds from the 'commercialisation' of the Research Results were not to flow back to ATTORI to be re-invested for further scientific research in accordance with ATTORI's stated 'objects'. Rather, ATTORI was providing a service, as a part of a commercial scheme, to Participants and the Manager, who would be entitled to the proceeds of sale of the fruits of the research: cl 5. In other words, the proceeds derived from the fruits of ATTORI's research were intended 'to be diverted into the pockets of individuals': The Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation [1971] HCA 44 ; (1971) 125 CLR 659 at 672. Other Budplans for which ATTORI was appointed to conduct research in the relevant years 54 As well as the Budplan Personal Syndicate, ATTORI was also appointed to conduct research in the following Budplans: (a) Personal Budplan No. 2 prospectus dated 3 June 1996 (b) Personal Budplan No. 3 prospectus dated 6 November 1996 (c) Personal Budplan No. 4 prospectus dated 16 April 1997 (d) Company Budplan No. 1 prospectus dated 8 May 1996 (e) Company Budplan No. 2 prospectus dated 3 June 1996 (f) Company Budplan No. 3 prospectus dated 26 May 1997 (g) Melaleuca Biotics Budplan project summary dated June 1996 55 It is apparent that a generic set of documents were used in relation to all of the abovementioned Budplans that were similar in nature to the Budplan Personal Syndicate Deed (although for these other Budplans there was a separate Management Agreement and Research Agreement rather than these being encompassed in one deed as was the case for the Budplan Personal Syndicate).


case_text: Qantas sought an order that the application, as filed, be dismissed summarily pursuant to s 17A of the FMC Act and r 13.10 of the FMC Rules on the basis that the applicant had no reasonable prospect of successfully prosecuting the proceeding. Qantas submitted that the applicant's complaint concerned conduct in India and the DDA had no extra-territorial operation. Qantas relied on Brannigan v Commonwealth of Australia [2000] FCA 1591 ; (2000) 110 FCR 566 which held that federal discrimination laws have no extra-territorial operation. The Federal Magistrate found that the 'entirety of the applicant's claim relates to his treatment at Mumbai Airport in India' and '[t]he discriminatory act upon which the applicant relies is the refusal of the Qantas Manager and other staff at Mumbai Airport to allow him to take all his baggage onto the aircraft without paying the excess baggage charge of some $600.00. This act occurred in India, not in Australia': at [124] and [128] of his reasons. The Federal Magistrate accepted that Brannigan was a correct statement of the law. His Honour accepted that the Court had no jurisdiction to hear a claim about alleged discrimination that arose in Mumbai and was confined to matters that occurred there. The application was dismissed on the ground that the applicant had no reasonable prospect of successfully prosecuting the proceeding: at [136] and [137] of his reasons. The applicant seeks leave to appeal from the judgment of the Federal Magistrates Court in respect of two matters: In relation to the first matter, the applicant raises a number of issues going to the construction and application of s 46PO(3) of the then HREOC Act and claims that by reason of errors made by his Honour in dealing with these issues, his Honour's exercise of the discretion in r 7.01 of the FMC Rules miscarried. In relation to the second matter, the applicant claims that his Honour failed to consider and give effect to various principles or provisions of the DDA and that he erred in concluding that the DDA had no extra-territorial effect. After reciting the terms of the claim in the original application, which are extracted in [2] above, his Honour said (at [124] and [128]): [124] In my view, the entirety of the Applicant's claim relates to his treatment at Mumbai Airport in India. In order for his claim to succeed, the Applicant must establish that the Disability Discrimination Act applies outside Australia. The Delegate of the President of the Human Rights and Equal Opportunity Commission dismissed the Applicant's claims on the basis that the Act did not apply extra-territorially, relying on the decision in Brannigan v Commonwealth of Australia. ... [128] The discriminatory act upon which the Applicant relies is the refusal of the Qantas Manager and other staff at Mumbai Airport to allow him to take all his baggage onto the aircraft without paying the excess baggage charge of some $600.00. This act occurred in India, not in Australia. In my view, his Honour's conclusion on this issue is not infected with any error. On the hearing of the leave application, the applicant submitted that it was not the case that his unamended application was confined to matters in Mumbai because it refers to the purchase of a ticket in early 2005 and a refusal by Qantas to reasonably accommodate his disability aids. These claims, it was submitted, raise issues broader than the conduct of Qantas in Mumbai. That may be so but it does not lead to the conclusion that any part of the discriminatory act originally complained of took place anywhere other than in India. The applicant further submitted on the hearing of the leave application that the Federal Magistrate: I reject all of these submissions. The first is not supported on the facts; the second was not particularised in any way; and the third is devoid of any reasoning process. Following upon what his Honour said at [128] of his reasons (see [34] above), at [129] his Honour said: [129] Unless he can show that the Disability Discrimination Act has an extra-territorial operation, the Applicant's claim cannot succeed. His Honour then considered various arguments by the applicant as to why Brannigan applies only to Commonwealth employees or matters relating to discrimination in employment and rejected these arguments. At [136] his Honour said: [136] I am satisfied that the decision in Brannigan clearly shows that this Court has no jurisdiction to hear a claim about discrimination that arose in Mumbai in India and is entirely confined to matters that occurred there. The Disability Discrimination Act has no extra-territorial effect. Had that been the intention of the legislature, then it would have been clearly stated in the legislation. I cannot identify any error in his Honour's process of reasoning. On the hearing of the leave application, the applicant submitted that his Honour erred in his approach to the extra-territorial issue. It was submitted that a distinction was to be drawn between discrimination in employment by the Commonwealth occurring outside Australia with which Brannigan was concerned, and the application of the DDA to foreign corporations, trading or financial corporations or trade or commerce between Australia and a place outside Australia. According to the applicant, his Honour took Brannigan too far by treating it as having conclusively determined that the DDA can never be concerned with conduct occurring outside Australia. I do not agree, nor do I agree with the applicant's submission that his Honour ought to have left the complex legal issues raised by the extra-territorial issue to be argued in full at a hearing on the merits. In conclusion, I am of the view that his Honour's conclusions on the two matters sought to be raised on appeal are not infected with any error and that even though a refusal of leave may effectively put an end to the applicant's substantive rights, no useful purpose would be served by a grant of leave, nor would the applicant suffer substantial injustice. The applicant's complaints have already been considered on a comprehensive basis by HREOC and terminated. The application must be refused with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 2 October 2009 Counsel for the Applicant: Mr P Batley Solicitor for the Applicant: Legal Aid New South Wales Counsel for the Respondent: Ms K Eastman Solicitor for the Respondent: Minter Ellison Date of Hearing: 17 September 2009 Date of Judgment: 2 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1121.html


case_title: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397

case_text: discretion the Court has in respect of an application for leave to appeal is a wide one, but is ordinarily informed by two considerations: (1) Whether in all the circumstances the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (2) whether substantial injustice would result if leave were refused, supposing the decision is wrong. See Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. The same considerations apply where the application for leave is heard by a single judge.


case_text: relation to both matters, it is claimed by the applicant that his Honour's reasoning and conclusions were vitiated by the excessive delay of 14 months between the conclusion of the hearing and the giving of judgment. This was not pressed on the hearing of the application for leave, correctly in my view, because it is well-established that delay will not constitute a ground of appeal in its own right in civil proceedings, but the manner in which it can affect appellate review can vary from case to case: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470 and Mastronardi v State of New South Wales [2007] NSWCA 54 at [63] . The highest it was put was by reference to the observations of Kirby J in NAIS at [87] and [88] that because extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution, it is incumbent on a court, reviewing the impugned decision in an appeal or on judicial review, to approach its task with vigilance.


case_title: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 ; (2005) 228 CLR 470


case_text: is for the applicant seeking leave to appeal to satisfy the court as to both these matters: Ogawa v University of Melbourne (No 2) [2004] FCA 1275. The considerations referred to in [20] above are not exhaustive. Whilst leave to appeal an interlocutory decision on a point of practice or procedure, rather than substantive rights, might less readily be granted, even a decision affecting the latter may be refused where the appeal would achieve no useful purpose. Refusal to Allow Amendment of Application The Federal Magistrate dealt with this matter at [88] [115] of his reasons. The applicant sought to amend his application in the manner indicated below: Describe the discrimination you are complaining of In early 2005 I purchased a return air ticket from Qantas to travel from Sydney to Mumbai, India and return. I commenced my journey on 23 March 2005 when I left Sydney and returned to Australia on a Qantas flight leaving Mumbai, India on 8 June 2005. The Respondent has discriminated against me in that it refused to its Conditions of Carriage failed to reasonably accommodate carriage of my mobility aids and other essential equipment, including medications and sleep machine without the payment of excess baggage charges. In doing so the Respondent has unlawfully discriminated against me in the provision of goods and services and access to premises on the grounds of my disability and has contravened the Disability Standards for Accessible Public Transport 2002. State all sections of the Act that are relevant to this claim Sections 4 , 5 , 6 , 7 , 11 , 12 , 23 , and 24 , 31 and 32 of the Disability Discrimination Act, 1992


case_text: applicant submitted that his Honour's conclusion, that ss 23 and 24 of the DDA are mutually exclusive and that the applicant could not rely on essentially the same conduct in a claim under two mutually exclusive sections, was an error of law. It was submitted that the provisions can and do operate mutually without excluding each other and reference was made to the decision of a Full Court of this Court in Queensland v Forest [2008] FCAFC 96 ; (2008) 168 FCR 532. Having closely read the reasons of the Full Court, both those of the majority (Spender and Emmett JJ) and the minority (Black CJ), I am not persuaded that this case is authority for that proposition. But even if these two provisions are not mutually exclusive and his Honour was in error in concluding that they were, in my view this would not vitiate his Honour's ultimate conclusion that the proposed amendments to the application are outside the limits of s 46PO(3) of the then HREOC Act. In my view, his Honour's refusal to allow amendment of the application in the terms proposed by the applicant, is not attended by sufficient doubt to warrant it being re-considered by this Court. Summary Dismissal The Federal Magistrate dealt with this matter at [116] to [137] of his reasons. His Honour paraphrased the issue, correctly in my view, as being whether the applicant had a reasonable prospect of successfully prosecuting his application. On the basis of the dismissal of the application to amend, his Honour observed, again correctly in my view, that the application to be considered was the original application filed on 8 June 2007: at [121] of his reasons.


case_text: orders sought in this case are orders refusing to enforce (in the sense of recognising for the purposes of the respondent' damages claim) provisions in the relevant property contracts. The orders sought seem to be similar to orders varying provisions of contracts and that is an order which could be made under s 87(1): see s 87(2)(b). The orders sought, or permissible variations of them, may, in the alternative, or in addition, fall within other paragraphs in s 87(2) (see, for example, s 87(2)(ba)). An order varying the contract price under a contract may be made under the section: Frith v Gold Coast Mineral Springs Pty Ltd [1983] FCA 28 ; (1983) 65 FLR 213 at 241 per Fitzgerald J. It may be likely that Mr Humphries' case as a whole will stand or fall on his claim for rescission. However, having regard to the wide terms of s 87 and the authorities, it cannot be said that his alternative claim for relief is bound to fail. In other words, it is possible that Mr Humphries will succeed on his claims under the TPA and yet the Court will award the alternative relief claimed by him. In those circumstances, the respondent's challenge must fail. Paragraph 56 of Ms Humphries' Statement of Claim The respondents seek an order that paragraph 56 of Ms Humphries' Statement of Claim be struck out on the ground that it is embarrassing and has a tendency to cause prejudice and delay. Paragraph 56 is in the following terms: "Peter Humphries passed on to the applicant the effect of what was being conveyed to him as described in this pleading prior to the applicant entering into the contracts."


case_text: respondents claim that this alternative claim is not maintainable as a matter of law and should be struck out. They rely on the Court's power in O 11 r 16 of the Federal Court Rules to strike out part of a pleading which discloses no reasonable cause of action. In essence, their argument is that there are no circumstances in which Mr Humphries' claim for rescission would fail and yet his claim for alternative relief would succeed. In my opinion, Mr Humphries' claim for alternative relief is not unarguable in the sense referred to in the authorities ( General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69 ; (1964) 112 CLR 125) and the respondents' application in relation to Mr Humphries' claim for alternative relief must be refused. As I have said, Mr Humphries claims a right to rescind the property contracts, or an order under s 87 of the TPA that the property contracts have been rescinded, or are rescinded. He then makes the following allegations, in the alternative: "106.6 Alternatively an order refusing to enforce the Contracts against the Applicant or alternatively that the Respondents be precluded from maintaining or acting upon the contract price being more than the market value or the settlement date being before the date on which allotments in Stage 3 commence to be sold or claiming that the Applicant is in default or is liable to pay or forfeit any monies to them. 106.7 In the alternative to paragraph 106.3 above, an order that the First Respondent and the Second Respondent be permanently restrained from calling upon the Bank Guarantees." The claim for relief in paragraph 106.3 is for a declaration that the applicant is entitled to the destruction or return of the bank guarantees. The claims for relief in paragraphs 106.6 and 106.7 are based on earlier paragraphs which are challenged. Paragraph 82 is in the following terms: "82 Alternatively, pursuant to section 87 , an order should be made refusing to enforce the Property Contracts and the second Marina Berth Agreement against the Applicant or alternatively that Newport Quays 2 be precluded from: 82.1 maintaining or acting upon the contract price being more than the true market value of the Properties being $805,000 for terrace No 44 and $315,000 for sky home No 607; 82.2 maintaining or acting upon the contract price being more than the true market value of the second Marina Berth being $60,000; 82.3 acting under clause 7.1 to claim that the Applicant is in default under the Property Contracts or the second Marina Berth Agreement or is liable to pay or forfeit any monies to Newport Quays."


case_text: authorities establish that the Court's power to award relief under s 87(1) is not constrained by common law or equitable principles: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388 (" Murphy v Overton Investments Pty Ltd ') at 407 [44]. The provisions of s 87 enable a Court to overcome some of the difficulties of the common law including those inherent in deciding whether to rescind or affirm a contract: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23 (" Mister Figgins ") at 60 per Northrop J. Doctrines such as affirmation or the non-availability of restitutio in integrum which bar rescission in equity are no more than discretionary considerations in the exercise of the power in s 87(1): JAD International Pty Ltd v International Trucks Australia Limited (1994) 50 FCR 378 at 380. An order may be made under s 87(1) where, inter alia, a person is likely to suffer loss or damage and the order may be one that is appropriate to prevent or reduce that loss or damage. This gives the section a wide operation: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494 at 505 per McHugh, Hayne and Callinan JJ; Murphy v Overton Investments Pty Limited at 407. Although quite a different case on the facts, the relief granted in Mister Figgins is illustrative of the broad power in s 87(1). Rescission was refused partly on the ground that the innocent party had affirmed the contracts, but nevertheless an order was made under s 87(1) varying the contracts.


case_title: Marks v GIO Australia Holdings Limited [1998] HCA 69 ; (1998) 196 CLR 494


case_title: Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23


case_title: Murphy v Overton Investments Pty Ltd [2004] HCA 3 ; (2004) 216 CLR 388


case_text: So far as the symptoms in her left elbow were concerned, the Tribunal was entitled, in the absence of expert evidence suggesting to the contrary, to draw the common-sense inference suggested by the fact that she experienced the same symptoms in each elbow; namely that their aetiology was the same ( Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45 ; (1940) 64 CLR 538 esp per Rich ACJ at 563). 36 For the above reason, the onset of symptoms in her right arm that were of the same character as the symptoms in her left arm was not an irrelevant consideration. The Tribunal was not under an obligation to disregard the symptoms experienced by Ms Butler in her right arm because no person expressed an expert opinion on the relevance of the symptoms in Ms Butler's right arm other than in respect of her carpal tunnel syndrome. 37 Ms Butler additionally contended that the Tribunal took into account irrelevant considerations when it had regard to 'inadmissible' evidence of Ms Carrall and Ms Small. While acknowledging that the Tribunal was not bound by the rules of evidence, Ms Butler argued that 'there must be occasions and are occasions that a tribunal could reject evidence that is clearly inadmissible and based on extreme hearsay' .


case_outcome: followed

case_text: Section 447A of the Act empowers the Court to make such order as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company. The section is broad enough to permit the making of an order that has some retrospective effect, and, in particular, the effect of overcoming the ending of an administration that has occurred by the operation of the Act; see Re Greg Sewell Forgings Pty Ltd (1995) 17 ACSR 602 ; Re Madden (1996) 20 ACSR 10.


case_title: Re Madden (1996) 20 ACSR 10


case_text: In those circumstances, for the reasons given in VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10] to [13] and NBCM v Minister for Immigration & Multicultural Affairs [2006] FCA 1150 at [13] , the "Statement Claim" and the information therein fell within s 424A(3)(b) of the Act. I note that an application for special leave to appeal to the High Court in VUAV was refused on 12 April 2006 ( VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183). Gummow J specifically said on that occasion that ' no error is apparent in Merkel J's decision upon the applicability of section 424A '. On that basis special leave was refused.


case_title: VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271


case_title: VUAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 183


case_text: Customs argued that the question of construction addressed by its proposed declaration was not determinative in the Tribunal but would be likely to be determinative if the matter were remitted. I do not agree. The characterisation of the goods would remain a question of fact on any remitter. The construction in the proposed declaration does not clarify whether the goods are or are not 'special insoles' or orthopaedic appliances outside Note 6 to Chapter 90, as I have held. Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ. The proposed declaration does not answer any question in respect of the goods. It is framed in the abstract.


case_text: As the Tribunal noted, a classifier of goods for the purpose of a customs tariff must look objectively at the goods in their condition as imported in order to identify objectively their classification for duty: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591 at 599 per Lockhart J with whom Woodward and Ryan JJ agreed. The subjective intention of the manufacturer, exporter or importer is not relevant to this task. In Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463, Morling and Wilcox JJ said that the classification of goods for tariff purposes was a practical, 'wharf-side' task. Morling and Wilcox JJ also said that the classifier had to consider the characteristics of the goods themselves as they would present to an informed observer. The heart of the exercise is to determine the essential character of the goods by reference to their state or condition at the time of importation ( Times Consultants 16 FCR at 462). Barton J said in Chandler & Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719 at 1729: '... the dutiable classification of an imported article must be ascertained by an examination of the article itself, in the condition in which it is imported.' 38 As noted above, there were many references in the evidence about particular views of what an orthosis could be called. The Tribunal did not need to go through each of these explaining its conclusions about them. Its task, as the classifier, was to examine the goods in the condition in which they were imported and form its assessment of their essential character as an informed observer: Chandler 4 CLR at 1729 per Barton J; Times Consultants 16 FCR at 462 per Morling and Wilcox JJ.


case_text: As the Tribunal noted, a classifier of goods for the purpose of a customs tariff must look objectively at the goods in their condition as imported in order to identify objectively their classification for duty: Chinese Food and Wine Supplies v Collector of Customs (Vic) (1987) 72 ALR 591 at 599 per Lockhart J with whom Woodward and Ryan JJ agreed. The subjective intention of the manufacturer, exporter or importer is not relevant to this task. In Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449 at 463, Morling and Wilcox JJ said that the classification of goods for tariff purposes was a practical, 'wharf-side' task. Morling and Wilcox JJ also said that the classifier had to consider the characteristics of the goods themselves as they would present to an informed observer. The heart of the exercise is to determine the essential character of the goods by reference to their state or condition at the time of importation ( Times Consultants 16 FCR at 462). Barton J said in Chandler & Co v Collector of Customs [1907] HCA 81 ; (1907) 4 CLR 1719 at 1729: '... the dutiable classification of an imported article must be ascertained by an examination of the article itself, in the condition in which it is imported.'


case_text: In characterising the goods the Tribunal was entitled to have recourse to common-sense, as Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ emphasised in Collector of Customs v Agfa-Gevaert Pty Ltd [1996] HCA 36 ; (1996) 186 CLR 389 at 400. 40 It was for the Tribunal to evaluate, as a factual matter, the essential character which it perceived the goods to have. It also had to identify what the word 'insole' meant as an ordinary English word. That is why it was open to the Tribunal to select its characterisation of the best description of the goods as being orthotic inserts of the kind described in the patent. 41 I am of opinion that Customs' characterisation of the Tribunal's approach to its case is not correct. The Tribunal's reasons show that it proceeded in a conventional manner. First, it identified what the goods were in the condition in which they came to be imported into Australia. It found that they were orthopaedic appliances within the meaning of heading 9021. It explained that this finding was made because the goods were 'more properly defined' as an artificial external device such as a brace or splint which prevented or assisted relative movement in the limbs. In this finding the Tribunal was expressing its ascertainment of the essential character of the goods. It explained that the finding was based on the ordinary and natural meaning of an orthopaedic appliance. That meaning was one which Customs accepted was open to the Tribunal based on its earlier decision in JS Levy (unreported Tribunal decision No 101; dated 8 September 1978) and the Oxford English Dictionary definition. 43 In my opinion, the reasons given by the Tribunal informed the parties why it came to the conclusion that it did. It made a finding as to how the goods would be viewed by an informed observer when they arrived at the wharf in Australia. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ deprecated an attempt to scrutinise, overzealously on judicial review, the reasons of an administrative decision-maker. 54 It is difficult to conceive that Note 6 of Chapter 90 was framed with the intention to exclude every orthotic insert except one made to measure. Such a construction would render otiose the second category of 'footwear' or 'special insole' in Note 6. Customs did not point to a construction that gave any reality to the existence an orthotic insert which was not made to measure and which met the criteria in Note 6 of Chapter 90. That is a good reason for concluding that orthotic inserts are not, in general, to be characterised as 'special insoles': Australian Securities and Investments Commission v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] . The argument of Customs deprives Note 1(e) of Chapter 64 of any real content because all orthotics, except those made to measure, would be excluded from being characterised as an orthopaedic appliance. Such a view is contrary to the words used in the Act and to common-sense ( Agfa-Gevaert 186 CLR at 400). I reject this argument. 55 Customs' proposed amended notice of appeal and application for an order for review seeks leave to add the following prayer for relief: 'That it be declared that the last paragraph to Note 6 to Chapter 90 in the Tariff Act has effect such that "footwear and special insoles designed to correct orthopaedic conditions" are "orthopaedic appliances" only if such footwear and special insoles are "either (1) made to measure or (2) mass-produced, presented singly and not in pairs and designed to fit either foot equally".' 56 In my opinion it would be inappropriate to grant such a declaration in this matter. The circumstances in which Note 6 of Chapter 9 can operate are varied. I am not in a position to review all of them or to assess the impact which any particular form of declaratory relief might have on other goods. 58 What a 'special insole' is in any particular case must be a question of fact, as must the question as to whether the good satisfies any of the criteria in Note 6 which might bring it to assessment under heading 9021. The proposed declaration is loosely framed and objectionable in form: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 579 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. 60 I am of opinion that the proposed amendment does not raise a fairly arguable claim to final relief and ought be refused: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155 per Dawson, Gaudron and McHugh JJ. 61 Ordinarily, where an appeal is brought under s 44 of the Administrative Appeals Tribunal Act , it will not be appropriate also to entertain proceeding for relief under the Administrative Decisions (Judicial Review) Act or s 39B(1A) of the Judiciary Act : Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; but where, as here, there is a potential that the proper construction of the words in the Customs Tariff Act may not raise a question of law under s 44, judicial review proceedings to enable all issues to be resolved may be appropriate: see s 22 of the Federal Court of Australia Act 1976 (Cth) and cp: Rich v CGU Insurance Ltd [2005] HCA 16 ; (2005) 214 ALR 370 at 375 [20] per Gleeson CJ, McHugh and Gummow JJ. I have considered the matter on both bases.


case_text: Brennan J said in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446 that a decision of the Tribunal , if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. Although that was a dissenting judgment, the principle his Honour stated is of general application (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [75] per McHugh, Gummow and Hayne JJ). Of course, much will depend on the extent of the decision-maker's exposure of a reasoning process in determining whether or not the decision can stand. So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to the authorities which enabled a court to infer that, where a decision-maker did not give any reason for his or her decision, he or she had no good reason for it. That is not this case. An obligation to give reasons, such as is found in s 43(2B) of the Administrative Appeals Tribunal Act , did not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. It is sufficient if the Tribunal, as the decision-maker, sets out its findings 'on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision': Yusuf 206 CLR at 349 [68] per McHugh, Gummow and Hayne JJ; see too Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] where I cited the authorities and SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J, [27]-[28] per Besanko J, and [53]-[61] per Buchanan J (dissenting).


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407; 74 ALJR 405

case_text: I am satisfied that the Tribunal addressed the correct question, understood the arguments and had regard to all relevant considerations and ignored irrelevant ones. This was a situation in which the Tribunal was not obliged to give more reasons than s 43(2B) of the Administrative Appeals Tribunal Act required. It set out its findings on material questions of fact and referred to the evidence and other material on which they were based, explaining logically why it came to the characterisation it did: cf: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at 422-423; [2000] HCA 1 ; 74 ALJR 405 at 416-417 [65] - [67] per McHugh J. As Davies and Beazley JJ said in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 13F-G, it is fundamentally a question of fact whether goods have an essential character and what that character is (see too at 14G-15B; and per Hill J at 16A).


case_text: Brennan J said in Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446 that a decision of the Tribunal , if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. Although that was a dissenting judgment, the principle his Honour stated is of general application (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [75] per McHugh, Gummow and Hayne JJ). Of course, much will depend on the extent of the decision-maker's exposure of a reasoning process in determining whether or not the decision can stand. So, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to the authorities which enabled a court to infer that, where a decision-maker did not give any reason for his or her decision, he or she had no good reason for it. That is not this case. An obligation to give reasons, such as is found in s 43(2B) of the Administrative Appeals Tribunal Act , did not oblige the Tribunal to give a subset of reasons why it accepted or rejected individual pieces of evidence. It is sufficient if the Tribunal, as the decision-maker, sets out its findings 'on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision': Yusuf 206 CLR at 349 [68] per McHugh, Gummow and Hayne JJ; see too Repatriation Commission v Cotton (2006) 93 ALD 118 at 128 [42] where I cited the authorities and SZCOQ v Minister for Immigration and Multicultural Affairs [2007] FCAFC 9 at [14] per Moore J, [27]-[28] per Besanko J, and [53]-[61] per Buchanan J (dissenting). 61 Ordinarily, where an appeal is brought under s 44 of the Administrative Appeals Tribunal Act , it will not be appropriate also to entertain proceeding for relief under the Administrative Decisions (Judicial Review) Act or s 39B(1A) of the Judiciary Act : Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484 per Davies J; but where, as here, there is a potential that the proper construction of the words in the Customs Tariff Act may not raise a question of law under s 44, judicial review proceedings to enable all issues to be resolved may be appropriate: see s 22 of the Federal Court of Australia Act 1976 (Cth) and cp: Rich v CGU Insurance Ltd [2005] HCA 16 ; (2005) 214 ALR 370 at 375 [20] per Gleeson CJ, McHugh and Gummow JJ. I have considered the matter on both bases.


case_title: Repatriation Commission v O'Brien [1985] HCA 10 ; (1985) 155 CLR 422


case_title: Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6


case_title: Times Consultants Pty Ltd v Collector of Customs (Qld) (1987) 16 FCR 449


case_text: CJ, Hayne and Heydon JJ returned to the question in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 ( Butcher ) at [36]-[37]: The relevant class addressed. Questions of allegedly misleading conduct, including questions as to what the conduct was, can be analysed from two points of view. One is employed in relation to "members of a class to which the conduct in question [is] directed in a general sense". The other, urged by the purchasers here, is employed where the objects of the conduct are "identified individuals to whom a particular misrepresentation has been made ..."; they are considered quite apart from any class into which they fall. Adoption of the former point of view requires isolation by some criterion or criteria of a representative member of the class ... The former approach is common when remedies other than those conferred by s 82 (or s 87) of the Act are under consideration. But the former approach is inappropriate, and the latter is inevitable, in cases like the present, where monetary relief is sought by a plaintiff who alleges that a particular representation was made to identifiable persons, of whom the plaintiff was one. The present case requires what in Butcher their Honours called the former approach looking at the impugned conduct through the eyes of members of the class to which it was directed in a general sense. Polaris is not complaining that it was misled by the representations in the comparison report. It is worried that whoever might have received the report could be misled. Thus it is necessary to identify the class of persons who, having received the report, are likely to be influenced by it. The market for noise suppression devices of the kind referred to in the report consists of businesses which conduct call centres in Australia. Telstra is one such business. Mr Gherbaz, Plantronics' managing director, said the M15D was being developed for both the forthcoming Telstra RFT and for the general market. The comparison report was intended to be used and was used for the general market as well as to assist Plantronics in relation to the tender. He said the potential readers of the report would be Occupational Health and Safety (OH&S) managers in organisations and call centre managers. They were the officers with whom Plantronics would deal in connection with enquiries about its devices and sales of them. Thus it was the OH&S manager of Westpac who enquired of Mr Gherbaz about its products and what path to go down. He sent her a copy of the report. The report was not made available to the general public.


case_text: relied on a passage in Mr McNeill's second affidavit in which he said that from his role in leading the design team for the M15D, he was aware that "the limiting regime provided for by limiting mode 3 causes the 125ms RMS speech average for the M15D to be limited to 95dB SPL at the drum reference point". Mr McNeill provided no reasoning or explanation to support this bald assertion. He was not in this affidavit relying on his February 2008 test, which had since his earlier affidavit been subjected to criticism by Mr Fisher. In Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397 at [108] the Full Court said: unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the Court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated. It is for the Court to judge the reliability of, and the weight to be given to, particular evidence. Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. Polaris urged me to attach no weight to Mr McNeill's statement of his "awareness". This is far from being a "straightforward, uncomplicated case", and the evidence in issue is of central importance to the lowest limiting setting issue. Mr McNeill's assertion amounts to no more than that he knows something because of his expertise. I attach no weight to the assertion. Loudness and intelligibility The difference between the two limiting settings was relied on by Polaris to show that louder sound was being heard on the M15D, which would have enhanced intelligibility compared with the sound heard at a lower level on SoundShield.


case_text: conduct is misleading or deceptive or likely to mislead or deceive is a question of fact to be determined having regard to the entire context of the conduct including the background of all surrounding circumstances. One of those circumstances, in a case such as the present, is the class of persons to whom the conduct was directed. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at [103] the whole Court said: Where [the class of consumers] are not identified individuals to whom a particular misrepresentation has been made ... but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained of has arisen or is likely to arise if no injunctive relief be granted.


case_text: am satisfied that the report was prepared by Dynamic in consultation with Plantronics. Mr Gherbaz suggested amendments and modifications to the document initially proposed by Dynamic. Plantronics was not a mere conduit for the carriage of information to those who received the report. The recipients would regard Plantronics as having adopted its contents, and thus as having made the representations contained in it. See Gardam v George Wills & Co Ltd [1988] FCA 194 ; (1998) 82 ALR 415 at 427. I did not understand this matter to have been in dispute. I will not at this stage make final orders. I will stand the matter over in order that the parties have an opportunity to consider the orders that should be made to give effect to these reasons, and to deal with the question of costs. If by 25 August 2009 the parties are unable to agree on the orders that should be made, Polaris should within seven days of that date file and serve a notice of the orders it proposes should be made together with an outline of submissions in support thereof, not to exceed five pages in length. Dynamic and Plantronics should each, within seven days of receipt of Polaris' notice and outline, file and serve a notice of the orders it proposes should be made together with an outline of submissions in support thereof, not to exceed five pages in length. I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 18 August 2009 Counsel for the Applicant: C Golvan SC and S Gatford Solicitor for the Applicant: GSM Lawyers Counsel for the First Respondent: R Kendall QC and M Lapirow Solicitor for the First Respondent: Ebsworth & Ebsworth Counsel for the Second Respondent: P Crennan Solicitor for the Second Respondent: Allens Arthur Robinson Date of Hearing: 14-17, 20-23 April, 25-27 May, 4-5 June 2009 Date of Judgment: 18 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/890.html