case_text: reasonableness of the period of time within which production is required is to be determined objectively by the Court in the light of the surrounding circumstances: cf Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252 at 258. Nagle J there concluded: ... the question for consideration by the Court is an objective one and does not depend on the subjective views of the Commissioner. To adopt a contrary view would give rise to such a Draconian situation as to demand the clearest and most explicit words in s 264, and this I do not find. See also: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73 ; (1985) 85 ATC 4 ,131 at 4,137 per Kaye J. The objective surrounding circumstances would include the breadth of each particular notice and (perhaps) the need for a recipient to construe the terms of a notice; the classes of documents required to be produced; the apparent ability of the recipient to collate and thereafter produce the documents; the time of the year at which a notice is served and intervening disruption to business activities by reason of public or religious holidays; whether there has been a prior attempt to require the production of the same or similar documents; and the time in fact allowed. Some consideration could also be given to the amount of time an examiner thought appropriate; although that consideration would not be decisive.


case_outcome: cited

case_title: Elias v Pasmore [1934] 2 KB 164

case_text: degree of care with which provisions such as s 22 have been drafted is obvious. At common law, for example, a police officer who was lawfully upon premises had a limited ability to seize that which he believed was evidence of a crime: Elias v Pasmore [1934] 2 KB 164. It was said that " the interests of the State must excuse the seizure of documents, which seizure would otherwise be unlawful, if it appears in fact that such documents were evidence of a crime committed by anyone ": [1934] 2 KB at 173. Other decisions limited this power to seize to only those materials which implicated the occupier in the same offence as that for which an arrest was being made or the seizure of those documents which implicated some other person in the same offence as that for which a search warrant had been issued: Ghani v Jones [1970] 1 QB 693 at 706; Butler v Board of Trade [1971] Ch 680 at 691; G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635 at 644 to 645; Adamson v Noall [1967] VR 105 at 115. Whatever be the extent of the power conferred at common law, s 22(7) now confers the following power: Where, in the course of searching, in accordance with the terms of a warrant issued under this section, for things of the relevant kind, the person executing the warrant finds a thing that he or she believes on reasonable grounds to be evidence that would be admissible in the prosecution of a person for an offence against a law of the Commonwealth, of a State or of a Territory, and he or she believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss, mutilation or destruction, or its use in committing such an offence, the person may seize the thing and, if he or she does so, the thing shall be deemed, for the purposes of this Act, to have been seized pursuant to the warrant. The concern of those drafting the Act was to ensure that the power of the Commission and its officers was clear. That which will require clarification in the future are the rights of those against whom the power is invoked.


case_text: 264 of the Income Tax Assessment Act 1936 (Cth) likewise employs different language to that employed by s 29 of the 2002 Act. Section 264 authorises, subject to its terms, a notice to be given by the Commissioner requiring a person " to furnish him with such information as he may require ... ". Gibbs ACJ said that " (t)o be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 525. Difficulty confronting a person in properly construing a notice is not sufficient to render a s 264 notice invalid. Mason J referred to the expression found in s 264(1)(b) " relating thereto " and continued at 537: It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty. The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. A notice which is valid under s 264 may thus be " of considerable breadth ": Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be " approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it ": (1989) 25 FCR 187 at 208. Other statutory provisions stand in a different position. Section 264 of the 1936 Act, for example, is subject in the case of s 264(1)(b) to some constraint by reason of the notice being one " relating " to a person's income — there may thus be reason to at least query the validity of a notice requiring the production a document having no apparent relevance to any person's " income or assessment ". When this power is sought to be exercised, attention has been directed to that information which must be conveyed to the person receiving the notice: Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499. Mason J there observed at 537: It is not in dispute that a notice given under par. (1) (b) may validly require the production of something less than all the books, documents and other papers in the custody or control of the recipient relating to the income or assessment of the named person. It may, for example, specify particular documents. Such a notice, if correctly drawn, will make it clear that the requirement extends to the particular documents because they are included in the class of documents of which the Commissioner is authorized to require production. As the Commissioner's coercive power to require production is limited, any notice given in exercise of the power must in terms conform to the statutory limitations if it is to be valid. It will in my view conform to those limitations only if it clearly confines the documents to be produce to the class of which the Commissioner is authorised to require production, though it may go on to include particular documents on the footing that they fall within that class. If not so limited, the notice fails on its face to express the limitation which the section places on the Commissioner's authority ... His Honour concluded at 539: ...the demand for production must be so formulated that it expresses the limitation impose[d] by the section. After expressing the view that a notice issued under s 264(1)(b) must identify the documents required to be produced with " sufficient clarity ", Gibbs ACJ continued at 525: However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind — a requirement to produce documents relating to the income or assessment of some person — and a notice requiring the production of documents not so related is beyond the scope of the power. See also: Jacobs J at 541 to 542; Murphy J at 547. See also: Hart v Commissioner of Taxation [2005] FCA 1748 at [95] to [97], [2005] FCA 1748 ; 148 FCR 198 at 227 to 228 per Greenwood J. Section 264(1)(a) is not so confined and permits what has been described as a " fishing expedition ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46] , [2001] FCA 1700 ; 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint.


case_text: gravity of the consequences that may flow from non-compliance with a notice, it is considered, is a factor relevant to determining the degree of specificity required: cf Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 208 per Hill J. Section 264 of the Income Tax Assessment Act 1936 (Cth) likewise employs different language to that employed by s 29 of the 2002 Act. Section 264 authorises, subject to its terms, a notice to be given by the Commissioner requiring a person " to furnish him with such information as he may require ... ". Gibbs ACJ said that " (t)o be valid a notice to produce documents under s 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 525. Difficulty confronting a person in properly construing a notice is not sufficient to render a s 264 notice invalid. Mason J referred to the expression found in s 264(1)(b) " relating thereto " and continued at 537: It is then for the recipient to decide for himself, difficult though the task may be, which of the documents answer the description. If his decision is wrong he exposes himself to prosecution and penalty. The existence of this hazard is not a sufficient basis for the conclusion that the section requires the Commissioner to give a notice in such terms as would enable the recipient on reading it and on examining the documents in his custody or control to determine whether they fall within the ambit of the Commissioner's powers. To so hold would be to impose an impossible burden on the Commissioner. A notice which is valid under s 264 may thus be " of considerable breadth ": Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 193 per Hill J. His Honour there further observed that the validity of a notice should not be " approached carpingly by engaging in a narrow analysis of each word in an attempt to find some latent ambiguity in it ": (1989) 25 FCR 187 at 208.


case_text: similar observation has been made in respect to s 264: F H Faulding & Co Ltd v Commissioner of Taxation [1994] FCA 1492 ; (1994) 54 FCR 75. Cooper J there observed at 126: The fact that compliance with the notice will be onerous or in the end result may be impossible and thereby expose the taxpayer to a sanction, will not of itself impose any limitation on the use of the power. Considerable reservation may be expressed as to whether a notice would be authorised by s 29 if it was deliberately drafted with such a breadth of language and such a short period of time permitted for compliance that it was either known or suspected by the examiner to be impossible of compliance. There may be circumstances in which a large number of documents may be required within a comparatively short period of time. Time may not be a luxury that those administering the 2002 Act may, in some circumstances, possess. But where a large number of documents are sought within a short period of time and where allowing greater time is possible, the specification of an arbitrarily short time for compliance may reflect upon the reasonableness of the exercise of the power or the good faith with which it has been exercised. In the present proceedings, there is a need to differentiate the December 2008 notices and the later ones issued in January 2009. On the face of the December 2008 notices, there is little (if any) reason to question the limited amount of time provided for compliance. The task may have been potentially onerous, but the time for compliance does not otherwise appear unreasonable.


case_title: G H Photography Pty Ltd v McGarrigle [1974] 2 NSWLR 635


case_text: some guidance may be gleaned from other statutory provisions which authorise the issuing of a notice requiring the production of documents. The best known examples are perhaps s 155 of the Trade Practices Act 1974 (Cth) and s 264 of the Income Tax Assessment Act 1936 (Cth). Other examples of similar statutory provisions may also be given: eg Bankruptcy Act 1966 (Cth) s 77C ; Australian Securities and Investments Commission Act 2001 (Cth) ss 30 to 33 . When considering s 264 of the 1936 Act in Grant v Commissioner of Taxation [2000] FCA 1383 , 104 FCR 1 , Black CJ, Merkel and Finkelstein JJ relevantly observed: [12] There are competing factors to be taken into account when considering the proper construction of s 264. On the one hand, it is to be remembered that the section interferes with a person's freedom to elect not to provide information, whether it is to the revenue authorities or to a law enforcement agency. Not only is s 264 an interference with personal liberty, a refusal or failure to comply with s 264 is an offence, attracting a fine or even a term of imprisonment: see ss 8C , 8D and 8E of the Taxation Administration Act 1953 (Cth). On the other hand, the principal source of revenue for the Commonwealth is income tax. It is notorious that many and varied devices are employed to avoid the incidence of that tax. Sometimes, outright fraud is involved. For this reason the Parliament found it necessary to give the Commissioner power to make wide ranging enquiries to investigate whether tax is due. In these circumstances, the Court should proceed on the footing that the intention was to give the Commissioner an effective, but not an oppressive or unfair, power of investigation. There are like " competing factors " to be taken into account in the present statutory context. Lord Denning MR observed that "[i]n a wicked world, it not unknown for books and papers to be destroyed or lost ": Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201 at 224. That was in 1978. The world is now even more " wicked " — and even less safe.


case_text: 264(1)(a) is not so confined and permits what has been described as a " fishing expedition ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46] , [2001] FCA 1700 ; 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint.


case_text: is also of some relevance that in communications and correspondence as between the Applicants and the Commission there was no prior assertion that there was any uncertainty on the part of the Applicants as to the documents required to be produced. Specificity in language may have regard to the knowledge of the person upon whom a notice is served: cf The Integrated Financial Group Pty Ltd v Australian Securities and Investments Commission [2004] WASCA 213 , 187 FLR 7. The " clarity " of a notice served under s 264 of the 1936 Act, it has been said, " must be considered against the background of the knowledge and circumstances of the Respondent to the Notice and the contextual facts ": Hart v Commissioner of Taxation [2005] FCA 1748 at [91] , [2005] FCA 1748 ; 148 FCR 198 at 226 per Greenwood J. A document may be specified if the description of the document required to be produced is sufficiently certain to identify it to the person upon whom a notice is served — even if that description may mean little (if anything) to a person without such knowledge. The Applicants in the present proceedings, it is considered, are more intent on attempting to find uncertainty where — upon a reasonable and practical reading of the Schedules — none exists. The contention that the examiner when issuing the notices failed to consider the relevance of the documents identified in the Schedules to each of the notices, and presumably also failed to consider the volume of the documents described, focussed upon the record " in writing [of] the reasons for the issue of the notice " as required by s 29(1A).


case_title: Kennedy v Baker [2004] FCA 562 , 135 FCR 520

case_text: Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J.


case_text: constraints upon the power may also be readily implied. These implied constraints would include the requirement that the power be exercised in good faith and for the purpose for which it was conferred: cf O'Reilly v the Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 48 per Mason, Murphy, Brennan and Deane JJ. The arguments now sought to be advanced in respect to s 29 have not been the subject of prior judicial consideration. Nor was the now repealed s 29 of the National Crime Authority Act 1984 (Cth) the subject of judicial consideration.


case_title: McCormack v Commissioner of Taxation [2001] FCA 1700 , 114 FCR 574

case_text: to those other statutory provisions which authorise the issue of a notice requiring the production of information or documents, however, has been the concern of the Court to ensure that each of the statutory demands that may be authorised is construed in a practical and common sense manner. Notwithstanding the difference in language as between s 155 of the 1974 Act and s 264 of the 1936 Act, for example, a similar approach has been adopted when considering the degree of certainty required in a notice issued under s 264: McCormack v Commissioner of Taxation [2001] FCA 1700 at [50] , [2001] FCA 1700 ; 114 FCR 574 at 590 per Sackville J. Ambiguity may be discerned by those with initiative to find uncertainty where none really exists. But that is not the manner in which any of the notices have been construed in the decided cases. The more obscure a category of " document or thing " may be, the greater may be the imperative for that " document or thing " to be described with a degree of specificity or definiteness so that the person upon whom a statutory notice is given may be capable of identifying that " document or thing " and thereafter producing it. It may be necessary at some stage to give greater content to the constraints that are imposed by the use of the term " specify " in s 29. That term may well require a greater degree of precision in the identification of the " document or thing " required to be produced than has been found appropriate in other statutory contexts. That greater degree of precision emerges from the statutory language employed in s 29. And reason for greater specificity may also be required by the very generality of the power conferred by s 29 upon an examiner. There is no express requirement, for example, that a notice issued under s 29 identify on its face the particular ambit of the " special ACC operation/investigation " in respect to which the " document or thing " is considered to be " relevant ". There is thus no requirement to identify anything as to the surrounding circumstances, however broadly they may be expressed, within which a person served with a notice can consider the factual or other context within which the power is being exercised. Section 264(1)(a) is not so confined and permits what has been described as a " fishing expedition ": Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1977] FCA 23 ; (1979) 143 CLR 499 at 515 at 535 to 536 per Mason J. Section 264(1)(a) may only be confined by the need to ensure that that power is exercised for the broadly expressed purposes elsewhere set forth in the Income Tax Assessment Act 1936 (Cth): Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46 ; (1990) 170 CLR 649 at 659 to 660. A notice issued under s 264(1)(a) need not reveal on its face that the Commissioner is entitled to require the information specified in the notice; it is enough for the notice or the covering letter to record that the information is required for the purposes of the 1936 Act: McCormack v Commissioner of Taxation [2001] FCA 1700 at [46] , [2001] FCA 1700 ; 114 FCR 574 at 589 per Sackville J. But those purposes, no matter how broadly expressed, impose some constraint.


case_title: McVey v Commissioner of Pay-roll Tax (Vic) [1985] HCA 73 ; (1985) 85 ATC 4 ,131


case_text: argument, however, must be rejected for either of two reasons, namely: (i) even if attention is confined to the reasons as provided by the examiner, it is not at all apparent that consideration was not given to the relevance of the documents required to be produced (and the potential large number of such documents) to the " special operation " being undertaken. It is difficult to conclude that the relevance of the documents required to be produced was not at the forefront of the examiner's mind when issuing the notice; and (ii) if there be any doubt, however, that doubt is resolved by recourse to the terms of the notices themselves. Each record on their face that the documents " are relevant to the said special operation ". Reliance upon a third argument is rejected. This third argument sought to focus upon: (iii) s 29(5) which provides that failure to comply with s 29(1A) " does not affect the validity of a notice " issued under s 29(1). This subsection simply provides that a failure to comply with the requirement to record in writing the reasons for the issue of a notice does not affect the validity of the notice. The case for the Commission was that it had in fact complied with the requirement; the case of the Applicants was that, having complied with the requirement, the Applicants could then rely upon the reasons provided to expose what the examiner's reasons were and what he had — and had not — taken into account. Had the record of those reasons provided by the examiner disclosed a failure to take into account a consideration which the examiner was " bound " to take into account ( Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39 per Mason J), s 29(5) would not have protected that notice from invalidity. Section 29(5) may have protected the validity of the notice had the inadequacy in the record of reasons been put in issue — but it would not protect such reasons as were provided from scrutiny. The onus upon the Applicants to prove a failure to take into account the consideration identified has not been discharged.


case_text: there is no requirement upon an examiner in all cases to extend to a person served with a notice issued under s 29 of the 2002 Act any prior opportunity to be heard. No such requirement has been imposed before issuing a notice under s 264 of the Income Tax Assessment Act 1936 (Cth) ( Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation [1985] FCA 213 ; (1985) 6 FCR 356 per Northrop J) or s 33 of the Australian Securities Commission Act 1989 (Cth) ( Minosea Pty Ltd v Australian Securities Commission (1994) 35 ALD 493 per Lindgren J).


case_title: Norwest Holst Ltd v Secretary of State for Trade [1978] Ch 201


case_text: 29 is in different terms to s 155 of the Trade Practices Act 1974 (Cth). Section 155 uses the term " specified " on a number of occasions — but not to describe the information required to be produced when that section is invoked. Section 155 refers to the statutory requirement that there be reason to believe that a person is capable of " furnishing information ... relating to a matter that constitutes, or may constitute, a contravention of this Act ". The section then authorises the issue of a notice requiring the production of " any such information ... ". Subject to noting that difference in language, in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, Northrop, Deane and Fisher JJ relevantly observed at 372: Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ( [1961] AC 636): "If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause" ([1961] AC at 670). Their Honours further observed at 375: The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear. On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155 , for example, employs the language of " information " ( Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18] , [2004] FCAFC 267 ; 140 FCR 170 at 175 to 176 per Tamberlin J) — a term less certain in meaning than a " document ". Section 77C of the Bankruptcy Act 1966 (Cth) uses different language yet again. Section 77C(1)(b) permits a notice to be issued requiring a person to " produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under this Act ... ". In respect to that provision it has been said that a " broad common sense approach " should be adopted. If the demand can be reasonably understood, the notice is valid: CK Nominees Australia Pty Ltd v Official Receiver (WA) [2007] FCAFC 118 , 160 FCR 524. A statutory demand had there been issued under s 77C of the Bankruptcy Act 1966 and Moore J concluded: [39] The appellant made a subsidiary submission that the notice was not reasonably clear about what documents were required. The submission centred on the expression "associated entities" which is used in the definition of "examinable affairs" set out on the third page of the notice (containing extracts from the Act). The expression "associated entities" is defined in the Act (though that definition was not sent with the extracts) and the expression "private company" which is found in the definition of "associated entities" is a defined expression. In my opinion, the primary judge was correct in concluding that the Court should, when construing a notice of the type under consideration, take a "broad common sense approach", an expression which fairly synthesises the more detailed discussion of the Full Court in Pyneboard 57 FLR at 374-375; 39 ALR at 570-571. In construing the reference to "examinable affairs" and looking at the definition, including the expression "associated entities", a recipient could reasonably be expected to understand that the notice was seeking documents concerning the direct dealings of the bankrupt as well as documents concerning the financial affairs of associated entities. That term described with sufficient clarity and as an ordinary English expression what was comprehended by the more precise definition including the reference to private company. Again some assistance may be gleaned from the manner in which s 155 of the Trade Practices Act 1974 (Cth) has been construed. A like argument to that now sought to be advanced was also advanced in Pyneboard . Northrop, Deane and Fisher JJ there observed at at 377 to 378: There remains to be considered the availability to the appellants of the grounds upon which they object to a particular requirement to produce documents, namely, that it is harsh, oppressive and unreasonable. The mere fact that compliance with a requirement to furnish information or to produce documents would be burdensome will not invalidate that requirement in a s 155 notice (see Melbourne Home of Ford v Trade Practices Commission (No 3) ((1980) 47 FLR 163); Riley McKay Pty Ltd v Bannerman ((1977) 31 FLR 129). Nor will objective harshness, unreasonableness or oppressiveness of a requirement in such a notice constitute an independent ground of invalidity. If invalidity by reference to these qualities is to be established, it must be by reference to the implied general limitation upon the power conferred by s 155(1) of the Act to which reference has already been made, namely, that it is a condition of a valid exercise of the power that it be used in good faith for the purpose for which it was conferred and with regard to the effect that the exercise of the power will have upon those affected thereby. It is only if the harshness, oppressiveness or unreasonableness of a requirement in a s 155 notice is, in all the circumstances, such as to warrant the conclusion that the requirement could not have been imposed in good faith or could only have been imposed to achieve a collateral purpose or without regard to the burden which it would impose upon the recipient, that harshness, oppressiveness or unreasonableness will result in invalidity.


case_text: 29 is in different terms to s 155 of the Trade Practices Act 1974 (Cth). Section 155 uses the term " specified " on a number of occasions — but not to describe the information required to be produced when that section is invoked. Section 155 refers to the statutory requirement that there be reason to believe that a person is capable of " furnishing information ... relating to a matter that constitutes, or may constitute, a contravention of this Act ". The section then authorises the issue of a notice requiring the production of " any such information ... ". Subject to noting that difference in language, in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, Northrop, Deane and Fisher JJ relevantly observed at 372: Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ( [1961] AC 636): "If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause" ([1961] AC at 670). Their Honours further observed at 375: The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear. On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155 , for example, employs the language of " information " ( Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18] , [2004] FCAFC 267 ; 140 FCR 170 at 175 to 176 per Tamberlin J) — a term less certain in meaning than a " document ".


case_text: 29 is in different terms to s 155 of the Trade Practices Act 1974 (Cth). Section 155 uses the term " specified " on a number of occasions — but not to describe the information required to be produced when that section is invoked. Section 155 refers to the statutory requirement that there be reason to believe that a person is capable of " furnishing information ... relating to a matter that constitutes, or may constitute, a contravention of this Act ". The section then authorises the issue of a notice requiring the production of " any such information ... ". Subject to noting that difference in language, in Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, Northrop, Deane and Fisher JJ relevantly observed at 372: Questions of ultra vires aside, we would respectfully agree with Fox J that uncertainty or ambiguity will not invalidate subordinate legislation or a written directive issued under statutory power unless a point is reached where it cannot reasonably be given any meaning. Strictly speaking, when this point is reached, what is involved is not a matter of mere ambiguity or uncertainty. As Lord Keith of Avonholm commented in Fawcett Properties Ltd v Buckingham County Council ( [1961] AC 636): "If it is impossible, on construction of the condition, to reach a conclusion as to what was in the craftsman's mind, the condition is meaningless and must be read as pro non scripto It is not a question of ambiguity. If a clause may convey several different meanings it is for the court to say, looking at the general background, surrounding circumstances, subject-matter of discourse and other aids derived from the context of the clause, supplemented not infrequently by certain legal presumptions, what meaning is to be attributed to the clause" ([1961] AC at 670). Their Honours further observed at 375: The requirement that a notice under s 155(1) convey, with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce is not to be applied in a precious or hypercritical fashion (see Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 47 FLR 163). Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear. On appeal, the decision was affirmed: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9 ; (1983) 152 CLR 328. See also: S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ; Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 at [36] to [43], 97 ALD 652 at 660 to 662 per Bennett J. Each statutory provision, of course, presents its own potential difficulties in construction. Section 155 , for example, employs the language of " information " ( Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 at [18] , [2004] FCAFC 267 ; 140 FCR 170 at 175 to 176 per Tamberlin J) — a term less certain in meaning than a " document ". After referring to Pyneboard and other decisions of the Full Court of this Court, in Australian Securities Commission v Lucas (1992) 36 FCR 165. Drummond J summarised the position in respect to notices issued under s 155 as follows: ... so far as form is concerned, a notice issued under s 155 of the Trade Practices Act to be valid must contain the following information: (a) it must disclose on its face sufficient information to identify the "matter" with respect to which the recipient of the notice is thought to be capable of giving information, evidence or producing documents; and (b) the notice must contain sufficient information to disclose the necessary relationship between the information or documents sought and the matter in respect of which that material is sought. This has been described as the " entitlement disclosure condition ": S A Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 at 370 per Fisher and French JJ.


case_title: Sixth Ravini Pty Ltd and Eighth Oupan Pty Ltd v Federal Commissioner of Taxation [1985] FCA 213 ; (1985) 6 FCR 356


case_title: Telstra Corporation Ltd v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 , 97 ALD 652


case_title: X v Australian Crime Commission [2004] FCA 1475 , 139 FCR 413

case_text: Applicants accept that they bear the onus of proving the invalidity of the notices: cf Australian Securities Commission v Lucas (1992) 36 FCR 165 at 177 per Drummond J; X v Australian Crime Commission [2004] FCA 1475 at [22] , [2004] FCA 1475 ; 139 FCR 413 at 419 to 420 per Finn J; Kennedy v Baker [2004] FCA 562 at [85] to [86], [2004] FCA 562 ; 135 FCR 520 at 542 to 543 per Branson J. The Australian Crime Commission Act 2002 (Cth) repeals the National Crimes Commission Act 1982 (Cth) (s 3) and establishes the Australian Crime Commission (s 7(1)). Section 7A sets forth the important functions entrusted to the Commission as follows: The ACC has the following functions: (a) to collect, correlate, analyse and disseminate criminal information and intelligence and to maintain a national database of that information and intelligence; (b) to undertake, when authorised by the Board, intelligence operations; (c) to investigate, when authorised by the Board, matters relating to federally relevant criminal activity; (d) to provide reports to the Board on the outcomes of those operations or investigations; (e) to provide strategic criminal intelligence assessments, and any other criminal information and intelligence, to the Board; (f) to provide advice to the Board on national criminal intelligence priorities; (g) such other functions as are conferred on the ACC by other provisions of this Act or by any other Act. Section 29 , the power presently in issue, provides as follows: Power to obtain documents (1) An examiner may, by notice in writing served on a person, require the person: (a) to attend, at a time and place specified in the notice, before a person specified in the notice, being an examiner or a member of the staff of the ACC; and (b) to produce at that time and place to the person so specified a document or thing specified in the notice, being a document or thing that is relevant to a special ACC operation/investigation. (1A) Before issuing a notice under subsection (1), the examiner must be satisfied that it is reasonable in all the circumstances to do so. The examiner must also record in writing the reasons for the issue of the notice. The record is to be made: (a) before the issue of the notice; or (b) at the same time as the issue of the notice; or (c) as soon as practicable after the issue of the notice. (2) A notice may be issued under this section in relation to a special ACC operation/investigation, whether or not an examination before an examiner is being held for the purposes of the operation or investigation. (3) A person shall not refuse or fail to comply with a notice served on him or her under this section. (3A) A person who contravenes subsection (3) is guilty of an indictable offence that, subject to this section, is punishable, upon conviction, by a fine not exceeding 200 penalty units or imprisonment for a period not exceeding 5 years. (3B) Notwithstanding that an offence against subsection (3) is an indictable offence, a court of summary jurisdiction may hear and determine proceedings in respect of such an offence if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent. (3C) Where, in accordance with subsection (3B), a court of summary jurisdiction convicts a person of an offence against subsection (3), the penalty that the court may impose is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 1 year. (4) Subsections 30(3) to (5) and (9) apply in relation to a person who is required to produce a document or thing by a notice served on him or her under this section in the same manner as they apply in relation to a person who is required to produce a document or thing at an examination before an examiner. (5) A failure to comply with any of the following provisions does not affect the validity of a notice under subsection (1) of this section: (a) subsection (1A) of this section, in so far as that subsection relates to the making of a record; (b) section 29A, in so far as that section relates to a notice under subsection (1) of this section. Provision is made in s 46B for the appointment of an " examiner " by the Governor-General. An examiner has, " in the performance of his or her functions ... the same protection and immunity as a Justice of the High Court ": s 36(1). Section 29 had as its counterpart s 29 in the National Crime Authority Act 1984 (Cth).


case_outcome: applied

case_text: The test for determining whether fresh evidence should be received, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and Federal Court Rules Order 52, rule 36 has been considered by the High Court in CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 in the joint judgment of McHugh, Gummow and Callinan JJ (197 CLR 201-202 [107]-[111]) where their Honours examined the nature of the discretion to admit fresh evidence on appeal under an analogue s 27. Their Honours noted that one consideration in construing the section was that it was remedial in nature and its principal purpose was to give to a Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of conventional appellate procedures and that a further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. 8 Their Honours held that another consideration is the effect of the principle that a provision conferring judicial power upon a Court should be construed liberally and without the making of implications, or the imposition of limitations not founded in the words used by the legislature. For that reason, their Honours said that that applied to limitations which previously were to be seen in common law principles governing the grant of new trials upon proof of fresh evidence or from some other source. 9 Significantly, for the purposes of this appeal, their Honours (197 CLR 201-202 [111]) pointed out that another consideration is that the discretion given to an appellate Court hearing an appeal against an order made is the exercise of original jurisdiction, in this case by the Federal Magistrates Court. Their Honours said that it was highly unlikely that the Parliament, in conferring jurisdiction on a Full Court to hear appeals, intended that the analogue to s 27 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction, and continued: 'Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.'


case_text: The Tribunal is not required to refer to every piece of evidence and every contention made by the appellant in his written reasons: WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]. 20 The Tribunal expressly considered and dealt with the appellant's claim that the Maoists had targeted him for his perceived involvement in the deaths of some of its activists, and the appellant's claims regarding the circumstances in which he was forced to leave his village of Singa in the Myagdi District. 21 The second ground which is sought to be argued alleges a breach of s 425 of the Migration Act 1958 (Cth) (the Act). It is conceded that the Tribunal raised with the appellant the issue to the effect that he was of no adverse interest to the Maoists because his wife had not been seriously harmed.


case_text: Even if it be accepted that there is implicit in the finding set out above an acceptance that the Maoists had the capacity to kill him, unless that can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the Tribunal accepting that proposition. It is no error of law in making a wrong finding of fact: Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 at [35-36] . 34 For the above reasons, in my opinion, the Court should give leave to the appellant to argue the three grounds which were sought to be relied on by him. However, for those reasons, the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender. Associate: Dated: 18 May 2007 Counsel for the Appellant: L.J. Karp Solicitor for the Appellant: Parish Patience Immigration Lawyers Counsel for the Respondent: T. Wong Solicitor for the Respondent: Clayton Utz Date of Hearing: 14 May 2007 Date of Judgment: 18 May 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/760.html


case_outcome: discussed

case_text: fact that there are related proceedings in the other Registry and that it would be convenient for one judge to manage and possibly hear the two cases together is a relevant consideration and, depending on the circumstances, may be decisive. In Accfin International Securities Co Ltd v National Trustee Executors and Agency Co of Australasia Ltd (1990) 99 FLR 432 , a case involving an application under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), MacKenzie J said (at 435): "I have finally concluded that the balance is tilted in favour of the Queensland proceedings being dealt with in the Victorian Supreme Court because it is desirable that the issues that will, on the pleadings, be litigated in the Queensland proceedings as between the defendants and the third parties be litigated only once, if possible. That result will more likely be achieved if the issues in the Queensland proceedings, which appear to be only one aspect of the Victorian proceedings, are litigated in or in conjunction with those proceedings." Markethaven does not accept that this proceeding should be tried together with the representative proceeding. The decision to bring this proceeding in the South Australia District Registry was not a capricious decision. It may be explained by the matters Mr Dugan sets out in his affidavit and, in particular, the facts that the administrators' head office and operational staff are in Adelaide and its solicitors and counsel practise, primarily at least, in this State. However, for the reasons set out below, there is a sound reason to make the order sought by the Commonwealth and that is the advantages of this proceeding being dealt with in the New South Wales District Registry in conjunction with the three proceedings already in that Registry. The balance of convenience clearly favours an order that this proceeding be conducted and continued in the New South Wales District Registry of this Court. Relevant matters 1. The significance of the other proceedings in the New South Wales District Registry


case_text: Commonwealth contends that this factor is irrelevant. Markethaven contends that it is a relevant matter and that its solicitors and counsel practise in Adelaide and that it has a pre-existing relationship with them. The authorities suggest that this is not a matter to be accorded great weight: Australian Competition and Consumer Commission v Fila Sport Oceania Pty Ltd [2003] FCA 430 at [8] and [25] per Hill J; Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 71 at [13] per O'Loughlin J.


case_title: Australian Competition & Consumer Commission v Pauls Ltd [2002] FCA 71


case_text: Dallen's affidavits establish the following matters: (1) Markethaven is subject to a deed of company arrangement. The company's registered office is in Queensland and its director and secretary, Mr Sid Sarantis, resides in that State. The one shareholder of the company, Ms Lynette Sarantis, also resides in Queensland. The administrators under the deed of company arrangement are Mr Ian Lock and Mr John Sheahan, who are members of the firm Sheahan Lock Partners. In the records provided to the Australian Securities and Investments Commission, Mr Lock's address is an address in South Australia and Mr Sheahan's address is an address in New South Wales. (2) The public office of the TGA is an address in the Australian Capital Territory. The TGA does not have any other public offices in Australia. It does have auditors based in Commonwealth Government offices in Sydney, Melbourne, Brisbane and Adelaide. (3) The second, third, fourth and fifth respondents reside in the Australian Capital Territory and the sixth respondent resides in Victoria. (4) On 7 April 2004, the liquidators of Pan commenced a proceeding (NSD 489 of 2004) in this Court against Mr Selim alleging breaches of his duties under s 180 of the Corporations Act 2001 (Cth) and under his contract of employment with Pan. Mr Selim brought cross-claims against the Commonwealth. In the fourth cross-claim, Mr Selim alleged that the Commonwealth had made a number of negligent misrepresentations during the course of audits and investigations into Pan's conduct by the TGA in the period from January to April 2003. The thrust of the representations was that the TGA, in carrying out certain conduct, was acting with one purpose in mind whereas in fact it had quite a different purpose in mind. It was also alleged by Mr Selim that the Commonwealth acted negligently in taking administrative action to suspend Pan's licence and cause a recall of all its products on 28 April 2003, and that it relied on inadequate and incorrect materials. In the fifth cross-claim, Mr Selim alleged that Ms Maclachlan, Mr Slater, Mr Tribe and Mr Fraser had engaged in the tort of misfeasance in public office in exercising powers during the conduct of the audits and investigations of Pan from January to April 2003 in a way which was knowingly in excess of their powers and done with malicious intent to injure Pan and Mr Selim. Mr Selim alleged that the Commonwealth was vicariously liable for the tortious conduct of Ms Maclachlan, Mr Slater, Mr Tribe and Mr Fraser. On 15 April 2008, the liquidator of Pan and Mr Selim reached a settlement of the action by Pan against Mr Selim. As part of the settlement, the liquidator of Pan assigned to Mr Selim certain causes of action held by Pan against the Commonwealth. Mr Selim's cross-claims against the Commonwealth proceeded. It is convenient to refer to these cross-claims as the Selim proceeding. The hearing of the Selim proceeding commenced on 30 June 2008 before Emmett J, and was adjourned part-heard on or about 30 July 2008. At the time of the adjournment, seven witnesses had given evidence on behalf of Mr Selim and eight witnesses had given evidence on behalf of the Commonwealth, including the second, fifth and sixth respondents. The Commonwealth had not called all of its witnesses and had as proposed witnesses an additional seven persons, including the third and fourth respondents. A substantial number of the witnesses and proposed witnesses of the Commonwealth resided in the Australian Capital Territory. Before the hearing resumed, Mr Selim reached a settlement with the Commonwealth. The Selim proceeding settled on terms requiring the Commonwealth to pay Mr Selim the sum of $50 million. (5) The Suspension Notice and the Recall Notice were issued to Pan during a meeting between representatives of Pan and the TGA that took place at Pan's premises in Sydney, New South Wales, on 28 April 2003, and the Markethaven Sponsor Notice was issued by the TGA from its Canberra office to Markethaven at its premises in Queensland. (6) On 23 December 2008, proceedings were commenced against the Commonwealth and the personal respondents under Pt IVA of the Federal Court of Australia Act 1976 (Cth) by Pharm-a-care Laboratories Pty Ltd. It is convenient to refer to this proceeding as the representative proceeding. The application in the representative proceeding states: "1. This application is brought by the applicant as a representative party. 2. The group members to whom the proceeding relates are persons who: (a) had on 28 April 2003 an economic interest in Pan Pharmaceuticals Ltd continuing to manufacture and supply certain classes of goods, principally vitamins, health supplements and complementary medicines; (b) suffered loss by reason of or as a consequence of the conduct of the Therapeutic Goods Administration in relation to regulatory action purportedly taken against Pan Pharmaceuticals on and from 28 April 2003; and (c) have, as at the date of commencement of this proceeding, entered into a litigation funding agreement with IMF (Australia) Ltd in relation to this proceeding." In the representative proceeding, Pharm-a-care claims, for itself and the group, damages, exemplary damages, interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth), costs, and such further or other relief as the Court determines is appropriate. The application in the representative proceeding sets out what are alleged to be questions of law or fact which are common between the claims of the applicant and the group members. (7) The representative proceeding is being funded by IMF (Australia) Ltd ("IMF"). On 5 September 2008, IMF made the following release to the Australian Securities Exchange: "The Board of Directors of IMF (Australia) Ltd announces that it proposes to fund a claim against the Commonwealth of Australia by certain persons who have suffered losses as a result of regulatory action against Pan Pharmaceuticals (in liquidation) ('Pan') in April 2003. The claim, to be filed in the Federal Court of Australia by McLachlan Thorpe Partners relate [sic] to regulatory action taken by the Therapeutic Goods Administration ('TGA') against Pan in April 2003 which caused Pan to fail and had a material impact on a range of parties, including Pan's shareholders, customers and creditors. The claim will allege misfeasance in public office and negligence by the TGA and its officers." At the annual general meeting of IMF held on 7 November 2008, the chief executive officer of IMF made a presentation to shareholders during the course of which he referred to the representative proceeding and said that the proceeding had a maximum claim value of $150 million. That is also the estimate of the value of the claim given in IMF's summary of the representative proceeding available on its website. (8) The statement of claim in the representative proceeding is a very lengthy document. For present purposes it is sufficient for me to adopt the description of the proceeding given by the Commonwealth in its written outline of submissions. This description is accurate. "In the representative proceedings - (a) Pharm-a-care makes allegations of misfeasance in public office against Ms Maclachlan, Mr Cesarin, Mr Tribe, Mr Fraser and Mr Slater in connection with the investigation and audit of Pan culminating in the issue of the suspension notice, the recall notice and the sponsors notice of the same general nature as Markethaven does in these proceedings and alleges that the Commonwealth is vicariously liable for the tortious conduct of those persons. (b) Pharm-a-care, like Markethaven, alleges a breach of a duties of care [sic] by the Commonwealth, Ms Maclachlan, Mr Cesarin, Mr Tribe, Mr Fraser and Mr Slater in connection with the issue of the suspension notice, the recall notice and the sponsors notice. Additionally, Pharm-a-care pleads causes of action in deceit, for inducing breach of contract, the tort in James v Commonwealth (1939) 64 CLR 562 and for trespass to goods." (9) On 16 July 2004, Mr Sheahan, a joint and several administrator of Markethaven, applied to the Federal Court for orders under s 596B and s 597(9) of the Corporations Act 2001 (Cth) for the purpose of examining three TGA officers, including Ms Maclachlan and Mr Fraser, and one TGA consultant, in order to obtain information relating to the TGA's suspension of Pan's licence under the Therapeutic Goods Act . That application was made in the New South Wales District Registry of this Court. On 24 July 2004, a Registrar of this Court made a series of orders under s 596B and s 597(9) for examination summonses to issue and books and documents to be produced. Those persons who were subject to the orders sought the discharge of the orders. Their application was heard by Emmett J, who, on 8 October 2004, made orders discharging the examination summonses and orders for production of documents: Commonwealth of Australia v Sheahan, in the matter of Markethaven Pty Ltd (subject to a deed of company arrangement) [2004] FCA 1301. In the course of his reasons, Emmett J said (at [103], [104]): "I have already indicated that the Challenged Orders could not stand in the form in which they were made. That is to say, orders could only be supported on the basis that the documents to be produced by the Commonwealth would be as described in the amended schedules agreed by the parties. Accordingly, the orders for production addressed to the Document Recipients and to the Commonwealth should be discharged in any event. However, I consider that none of the Challenged Orders should stand, having regard to the want of full, frank and candid disclosure by Mr Sheahan. The discharge of the examination summonses and orders for production would not, however, necessarily preclude a fresh application. In any such fresh application, the precise relationship between Mr Sheahan and Mr Selim and the circumstances in which Mr Sheahan came to be involved with Markethaven, together with possible difficulties with the putative cause of action, would have to be disclosed in full, to enable the Court to make an informed decision as to how the discretion should be exercised." No fresh application for examination summonses and orders for production was made. It is not necessary for me to set out in detail the events which occurred in 2004. In so far as they are known, they are set out in Emmett J's reasons at [38]-[63]. It seems that Mr Andrew Thorpe of McLachlan Thorpe Partners, solicitors, acted for Mr Selim in the Selim proceeding. McLachlan Thorpe Partners are the solicitors for the applicant in the representative proceeding. It seems that, in January 2004, Mr Sheahan was corresponding with Mr Thorpe with a view to assisting Mr Selim in acquiring Pan's cause of action "against the TGA". It seems that Mr Selim paid the costs of the Markethaven meeting which appointed Messrs Sheahan and Lock as joint and several administrators of the deed of company arrangement of Markethaven in place of the then deed administrators. It seems that a company called Markethaven Funding Company Limited was formed on 25 June 2004 and that the sole director of that company was Mr Selim's wife, Ms June Selim. On 12 August 2004, the company entered into an Investigation Funding Deed with Markethaven and Messrs Sheahan and Lock. (10) Mr Dallen is of the view that Mr Selim and others who gave evidence on his behalf in the Selim proceedings may be called as witnesses by Markethaven and by the applicant in the representative proceedings. (11) A database containing approximately 18,249 documents and compiled for the purpose of the Commonwealth giving discovery in the Selim proceeding is held by Mr Dallen's firm in Sydney, New South Wales. To the extent that there are other relevant documents in the Commonwealth's possession, custody or control, those documents are likely to be held by the TGA in its offices in the Australian Capital Territory. (12) It seems that Markethaven has a substantial excess of liabilities over assets. In November 2008, its solicitors said that the company's assets were worth $33,000 and its liabilities totalled $671,032.54. At about that time, the Commonwealth's solicitors raised with Markethaven's solicitors the question of whether Markethaven should provide security for costs. In the course of correspondence which passed between the Commonwealth's solicitors and Markethaven's solicitors, the latter indicated that Markethaven was not receiving funding for the conduct of the proceeding from any third party, nor did any third party stand to benefit from the proceeding. After I had heard submissions on the Commonwealth's application, a sixth affidavit of Mr Dallen was filed. The parties were in agreement that I could have regard to that affidavit. The affidavit was sworn on 13 May 2009. Mr Dallen deposes to the fact that, since submissions on the Commonwealth's application were heard in March 2009, two new Federal Court proceedings against the Commonwealth and the personal respondents in relation to the suspension of the licence of Pan to manufacture therapeutic goods under the Therapeutic Goods Act had been commenced in the New South Wales District Registry of this Court. On 24 April 2009, Vita Health Laboratories (Australia) Pty Ltd and other applicants listed in a schedule to the application commenced proceedings against the Commonwealth and the personal respondents. I will refer to these proceedings as the Vita Health proceeding. Vita Health Laboratories (Australia) Pty Ltd ("Vita Health") and one of the other applicants, Supplements World Pte Ltd (in Liquidation) ("Supplements World"), were sponsors of therapeutic goods supplied to them by Pan, and the other applicants were entities related to Vita Health and Supplements World. Mr Dallen expresses the view that many of the issues that are in dispute in the Markethaven proceeding are raised in the statement of claim in the Vita Health proceeding and that there will be a substantial overlap in the matters that will be the subject of the Vita Health proceeding and this proceeding. The Vita Health proceeding is in the docket of Flick J.


case_text: Cycles & Wheelman Pty Ltd v Beltech Corporation Ltd (1988) 80 ALR 279 , Gummow J (as a judge of this Court) said (at 281): "It is not, in my view, simply a question of the court locating the balance of convenience, because the court must be satisfied by the applicant that there be a change in the status quo and in the identity of the 'proper place' and that transfer be ordered." (See also my reasons in Rafferty v Time 2000 West Pty Limited [2008] FCA 1925 at [3] - [5] .)


case_text: leading authority dealing with the operation of s 48 of the Federal Court of Australia Act 1976 (Cth) is National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155. In that case, Bowen CJ, Woodward and Lockhart JJ said (at 162): "The power conferred on the Court or a judge by s 48 is in terms wholly unfettered. It should be exercised flexibly having regard to the circumstances of the particular case. It would be regrettable and unwise if the Court were to circumscribe the general power conferred by s 48 with inflexible rules or impose inelastic constraints upon its exercise. As the power may be exercised subject to conditions, the Court or a judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases. The power conferred by s 48 recognises the national character of this Court. The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely."


case_title: Rafferty v Time 2000 West Pty Limited [2008] FCA 1925


case_title: Boscolo v Botany Council [1996] FCA 897

case_text: The Full Court said in Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 at 584 that, for the purposes of ss 40(1)(g) and 41 (3)(b) of the Bankruptcy Act , there need not be an express order of a court staying execution of the particular judgment on which the creditor relies. The Full Court at 585 approved the observations of Beaumont J in Re Solomon; Ex parte Reid (1986) 10 FCR 423 at 425 426 that, for the purposes of s 41(3)(b) , execution is deemed to have been stayed where the judgment creditor is not in a position to issue immediate execution upon it. Circumstances preventing the judgment creditor from issuing execution include action by the judgment creditor to prevent payment of the debt or the appointment of a receiver over the debtor's property by order of the court so that the debtor, ' in practical reality ' is prevented from paying the debt ( Wiltshire-Smith at 586 587). The onus is on the debtor to prove affirmatively that the claim in respect of which the bankruptcy notice was issued could and would have been paid but for some act or omission which has the practical effect, in a business sense, of preventing the debtor from paying the debt ( Boscolo v Botany Council [1996] FCA 897 per Jenkinson J at 8 with whom O'Loughlin J agreed and per Sackville J at 4).


case_text: Having considered a number of relevant authorities ( Sood at [12]), including Ling v Enrobook Pty Ltd (1997) 74 FCR 19, Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 , National Australia Bank Ltd v Pollak (2001) 186 ALR 44 and Commissioner of Taxation v Stuart-Jones [2000] FCA 1022 ; (2000) 102 FCR 296, Gyles J concluded at [13] that the ability of the debtor to seek an order permitting payments of the judgment debt pursuant to s 24 of the Commonwealth Act means that execution is not stayed in the relevant sense. The debtor had submitted, as Mr Ollis does here, that it is unrealistic to think that such an application could be made after service of the bankruptcy notice and prior to the time for compliance. His Honour rejected the submission. As his Honour concluded, where the debtor had the ability to seek an order permitting payment of the judgment debt, the payment is optional for the debtor in a practical sense. His Honour found nothing to indicate that the legislature contemplated that the Commonwealth Act would interfere with the ordinary operation of the bankruptcy law beyond the effect of the sections introduced to deal expressly with that topic. Justice Gyles noted the absence of locus standi of the creditor under the Commonwealth Act to vary the restraining order. However, that factor does not affect the logic of his Honour's reasoning or the debtor's ability to apply to vary the order. 14 In Stuart-Jones Mathews J was considering the Assets Recovery Act. At [26] her Honour expressed the view that it was at least arguable that a restraining order under s 10 will have the effect of preventing the levying of execution against the person's property so that the judgment creditor was not in a position to issue immediate execution on the judgment. Her Honour considered that a restraining order under the Assets Recovery Act bore a closer resemblance to the appointment of a receiver or trustee than to a Mareva injunction. It could then constitute a stay of execution under s 41(3)(b) of the Bankruptcy Act . Mathews J did not, however, consider it necessary to express a concluded view as the restraining order applied to part only of the debtor's property. Her Honour did observe that it might operate as a stay so long as, in a practical and business sense, it prevented the debtor from paying the judgment debt. The onus of proving this matter lies with the debtor which, in Stuart-Jones , was not established (at [27]). 15 In Sood , Gyles J referred to Stuart-Jones and Mathews J's indication that the operation of the restraining order as a stay was at least arguable (at [6]). After reviewing the cases since Stuart-Jones , his Honour came to a conclusion that differed from her Honour's indication. He placed some weight on the factor referred to but not taken into account by Mathews J, the ability of the debtor to make an application. That ability was, in his Honour's view, decisive (at [13]). Further, Gyles J was of the view that the restraining order is akin to a Mareva injunction in its effect, contrary to the view of Mathews J (at [13]).


case_text: Federal Magistrate Smith concluded at [20] [22] that, while s 12 may not permit the reconsideration of the basis of the Supreme Court order or a variation of that order to apply for exclusion orders ( New South Wales Crime Commission v Ollis (2006) 65 NSWLR 478 at [34] [35] per Giles JA), neither New South Wales Crime Commission nor the language of the Assets Recovery Act precluded an application for an ancillary order to vary a restraining order. I agree with Smith FM that there is no reason why, under the Assets Recovery Act, Mr Ollis was precluded from making an application which would have resulted in him satisfying the judgment debt by, for example, releasing sufficient property from the Supreme Court order to pay the judgment debt. There is no evidence to support the submission that there was no prospect that he could have obtained the requisite exemption from the Supreme Court order or that he could not have obtained it within the time necessary to avoid the act of bankruptcy. Mr Ollis points to a concurrent hearing in the Supreme Court Court of Appeal ( New South Wales Crime Commission ) and the fact that it was heard on the day of purported service of the bankruptcy notice. I do not accept that this precluded Mr Ollis from making a s 12 application or that, in a practical business sense, a variation could not have been obtained. 26 It follows that Mr Ollis was able to apply both under the terms of the Supreme Court order and under the Assets Recovery Act for an order to vary the Supreme Court order to exclude sufficient of the property to pay the judgment debt. 27 Mr Ollis also submits that the purpose of the Assets Recovery Act is to ensure that only secured debts take priority to the confiscation of property under that Act. Some support for that proposition can be found in the definition in s 4 of "dealing" (which is prohibited by a restraining order under s 10) to include: (a) if the interest is a debt making a payment to any person in reduction of the amount of the debt


case_outcome: considered

case_title: Rayner & Anor v Ollis [2007] FMCA 1160

case_text: The facts in this appeal from a decision of Smith FM ( Rayner & Anor v Ollis [2007] FMCA 1160) are not in dispute. Judgment was obtained by the respondents against Mr Ollis in the sum of $39,411.55 on 1 July 2005 in an unrelated matter ('the judgment'). Mr Ollis' property then became the subject of an application by the New South Wales Crime Commission for a "proceeds assessment order" under s 27 of the Criminal Assets Recovery Act 1990 (NSW) ('the Assets Recovery Act'). On 19 January 2006 Sully J of the New South Wales Supreme Court made a restraining order ('the Supreme Court order') against, inter alia, Mr Ollis pursuant to s 10 of the Assets Recovery Act in the following terms: Pursuant to section 10 of the Criminal Assets Recovery Act 1990 that no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990 ) of Victor Warren Ollis, including the interest in property in the property described in Schedules One, Two, Three, Four and Five hereto. 2 An "interest in property" is widely defined in s 7 of the Assets Recovery Act and includes an interest in real or personal property, money and the goodwill of a business. The effect of the Supreme Court order brought Mr Ollis' property under the control of the Supreme Court pending the Court's assessment of an amount to become payable as a debt to the Crown. Neither Mr Ollis nor the respondents could deal with any interest in the property without the leave of the Supreme Court. 3 In the Supreme Court order Justice Sully gave liberty to a number of people including Mr Ollis to apply on three days' notice. There is no suggestion that Mr Ollis did so. The Supreme Court order has been in effect at all relevant times since it was made.


case_title: Re Solomon; Ex parte Reid (1986) 10 FCR 423


case_outcome: followed

case_text: In Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 1721 ; (2006) 156 FCR 240, Gyles J considered the "interplay" between the bankruptcy legislation and the Proceeds of Crime Act 2002 (Cth) ('the Commonwealth Act'). The question before his Honour was whether an order pursuant to s 18 of the Commonwealth Act effectively stays execution on an outstanding judgment against the party subject to that order for the purposes of ss 40(1)(g) and 41(3)(b) of the Bankruptcy Act (at [1]). Justice Gyles recognised at [11] that the concept of a "stay" has been ' stretched beyond recognition ' but proceeded to consider and apply existing authority to the effect that the test as laid down by the Full Court in Wiltshire-Smith was whether in the eyes of ordinary fairness in business it will be said that the order has, in a business sense, prevented the debtor from paying (at [12]). In this regard Mr Ollis says that if he had to make an application for leave to deal with the property the subject of the Supreme Court order, the creditor was not entitled to levy immediate execution. 13 Having considered a number of relevant authorities ( Sood at [12]), including Ling v Enrobook Pty Ltd (1997) 74 FCR 19, Re Ousley; Ex parte Commissioner of Taxation (1994) 48 FCR 131 , National Australia Bank Ltd v Pollak (2001) 186 ALR 44 and Commissioner of Taxation v Stuart-Jones [2000] FCA 1022 ; (2000) 102 FCR 296, Gyles J concluded at [13] that the ability of the debtor to seek an order permitting payments of the judgment debt pursuant to s 24 of the Commonwealth Act means that execution is not stayed in the relevant sense. The debtor had submitted, as Mr Ollis does here, that it is unrealistic to think that such an application could be made after service of the bankruptcy notice and prior to the time for compliance. His Honour rejected the submission. As his Honour concluded, where the debtor had the ability to seek an order permitting payment of the judgment debt, the payment is optional for the debtor in a practical sense. His Honour found nothing to indicate that the legislature contemplated that the Commonwealth Act would interfere with the ordinary operation of the bankruptcy law beyond the effect of the sections introduced to deal expressly with that topic. Justice Gyles noted the absence of locus standi of the creditor under the Commonwealth Act to vary the restraining order. However, that factor does not affect the logic of his Honour's reasoning or the debtor's ability to apply to vary the order. 15 In Sood , Gyles J referred to Stuart-Jones and Mathews J's indication that the operation of the restraining order as a stay was at least arguable (at [6]). After reviewing the cases since Stuart-Jones , his Honour came to a conclusion that differed from her Honour's indication. He placed some weight on the factor referred to but not taken into account by Mathews J, the ability of the debtor to make an application. That ability was, in his Honour's view, decisive (at [13]). Further, Gyles J was of the view that the restraining order is akin to a Mareva injunction in its effect, contrary to the view of Mathews J (at [13]). 17 Federal Magistrate Smith gave detailed consideration to the operation of the Assets Recovery Act and to the differences between that Act and the Commonwealth Act. His Honour concluded at [22] that there was nothing in the language of ss 10(1) or 12(1) or any other provision of the Assets Recovery Act to give rise to an implication that the Supreme Court does not have power to frame or vary a restraining order so as to make available to a person who is subject to the order sufficient of his assets to meet a debt owed to a bona fide creditor under a judgment. His Honour gave a number of examples which might be appropriate. He concluded that those sections encompass a discretion in the Supreme Court to allow the payment of specified debts which is at least as broad as that expressly conferred by s 24 of the Commonwealth Act. As Smith FM noted at [23], in the absence of express limitation, the fact that the scheme of the Assets Recovery Act envisages the payment of debts incurred by way of living expenses or legal expenses (s 10(5)) suggests that the Court also intended, in appropriate cases, to allow the payment of other creditors owed amounts under regularly obtained judgments rather than the contrary. His Honour followed the reasoning of Gyles J in Sood . 18 Mr Ollis contends that s 10 of the Assets Recovery Act, which provides for a restraining order, does not provide for a right on the part of the owner of the property to make an application in respect of it. Mr Ollis accepts that the Supreme Court order provides, in its terms, for liberty to him to apply to the Court. He submits, however, that such an application does not extend to setting aside or varying the Supreme Court order made under s 10. In that regard he submits that the Assets Recovery Act differs from the Commonwealth Act the subject of consideration in Sood . 19 I do not accept Mr Ollis' submission. 20 Section 10(1) of the Assets Recovery Act provides that the restraining order applies '... except in such manner or in such circumstances (if any) as are specified in the order '. Orders under s 10(1) may be made ex parte on the application of the New South Wales Crime Commission (s 10(2)). The Supreme Court order included liberty to Mr Ollis to apply, which therefore specified such an application as an exception to the order for the purposes of s 10(1). That exception encompassed an application to vary the order to permit, for example, disposition or dealing with property to which the order applies or varying the property the subject of the restraining order.


case_text: The Full Court said in Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 at 584 that, for the purposes of ss 40(1)(g) and 41 (3)(b) of the Bankruptcy Act , there need not be an express order of a court staying execution of the particular judgment on which the creditor relies. The Full Court at 585 approved the observations of Beaumont J in Re Solomon; Ex parte Reid (1986) 10 FCR 423 at 425 426 that, for the purposes of s 41(3)(b) , execution is deemed to have been stayed where the judgment creditor is not in a position to issue immediate execution upon it. Circumstances preventing the judgment creditor from issuing execution include action by the judgment creditor to prevent payment of the debt or the appointment of a receiver over the debtor's property by order of the court so that the debtor, ' in practical reality ' is prevented from paying the debt ( Wiltshire-Smith at 586 587). The onus is on the debtor to prove affirmatively that the claim in respect of which the bankruptcy notice was issued could and would have been paid but for some act or omission which has the practical effect, in a business sense, of preventing the debtor from paying the debt ( Boscolo v Botany Council [1996] FCA 897 per Jenkinson J at 8 with whom O'Loughlin J agreed and per Sackville J at 4). 12 In Sood v Crown Diagnostic Imaging Pty Ltd [2006] FCA 1721 ; (2006) 156 FCR 240, Gyles J considered the "interplay" between the bankruptcy legislation and the Proceeds of Crime Act 2002 (Cth) ('the Commonwealth Act'). The question before his Honour was whether an order pursuant to s 18 of the Commonwealth Act effectively stays execution on an outstanding judgment against the party subject to that order for the purposes of ss 40(1)(g) and 41(3)(b) of the Bankruptcy Act (at [1]). Justice Gyles recognised at [11] that the concept of a "stay" has been ' stretched beyond recognition ' but proceeded to consider and apply existing authority to the effect that the test as laid down by the Full Court in Wiltshire-Smith was whether in the eyes of ordinary fairness in business it will be said that the order has, in a business sense, prevented the debtor from paying (at [12]). In this regard Mr Ollis says that if he had to make an application for leave to deal with the property the subject of the Supreme Court order, the creditor was not entitled to levy immediate execution.


case_text: I agree, with respect, with Giles JA in Woodcroft v Director of Public Prosecutions (2000) 174 ALR 60 at [72] where his Honour said that an ancillary order must be ancillary to something, here to the Supreme Court order, in that it is incidental or supplemental to it. Justice Giles commented that a narrow view of what is incidental or supplemental should not be taken. His Honour then considered, as an ancillary order, an order varying the property the subject of a restraining order but concluded that, in the circumstances of Woodcroft , the order sought could not be so characterised (at [71] [73]).


case_outcome: referred to

case_title: Australian Woollen Mills Ltd v F S Walton & Co Ltd [1937] HCA 51 ; (1937) 58 CLR 641

case_text: was referred to what Windeyer J said in Shell concerning 'deceptive similarity', quoted at [25] supra, and to what was said by Dixon and McTiernan JJ in Australian Woollen Mills at 658: 'In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same. The effect of spoken description must be considered. If a mark is in fact or from its nature likely to be the source of some name or verbal description by which buyers will express their desire to have the goods, then similarities both of sound and of meaning may play an important part. The usual manner in which ordinary people behave must be the test of what confusion or deception may be expected. Potential buyers of goods are not to be credited with any high perception or habitual caution. On the other hand, exceptional carelessness or stupidity may be disregarded. The cause of business and the way in which a particular class of goods are sold gives, it may be said, the setting, and the habits and observations of men considered in the mass affords the standard. Evidence of actual cases of deception, if forthcoming, is of great weight.'


case_title: Beecham Group Plc v Colgate-Palmolive Pty Ltd (2005) 66 IPR 254

case_text: was also referred to the recent decision in Beecham Group at [54] [56] where the Court considered the established principles in Southern Cross and confirmed that the approach adopted by the Court is to attempt to estimate the 'effect or impression produced on the mind of potential customers' and to determine whether there is a 'real, and tangible danger of confusion'.


case_text: the respondent submitted that any emphasis solely on the similarities would be misconceived. In considering marks as a whole where they contain common words, one should look primarily to those aspects of the marks that are not common: Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd [1952] HCA 15 ; (1952) 86 CLR 536 at 538 539; Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd (2004) 63 IPR 38 at [40]; Chantelle v Kabushiki Kaisha Chandeal (1996) 36 IPR 549 at 568; and Re London Lubricants (1920) Ltd's Application [1925] 42 RPC 264 at 279.


case_text: the respondent submitted that any emphasis solely on the similarities would be misconceived. In considering marks as a whole where they contain common words, one should look primarily to those aspects of the marks that are not common: Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd [1952] HCA 15 ; (1952) 86 CLR 536 at 538 539; Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd (2004) 63 IPR 38 at [40]; Chantelle v Kabushiki Kaisha Chandeal (1996) 36 IPR 549 at 568; and Re London Lubricants (1920) Ltd's Application [1925] 42 RPC 264 at 279. But while greater weight may have to be given to some aspect of a registered mark over other aspects in assessing the impression it may create for the determination of the ultimate question whether another mark so nearly resembles that registered mark that it is likely to deceive or cause confusion the authorities are quite clear that the marks have to be considered as a whole: Cooper Engineering at 538; SAP Australia at [27] and [41]. The two marks, 'STARR Partners' and 'Star REALTY', along with their respective star logos, are neither visually nor aurally similar. Indeed, they are quite distinct. One is reminded of what the High Court said in Cooper Engineering at 538 539: 'In the present case the prefix of the two words is the same word "Rain", but the suffix "master" differs from the suffix "King" in appearance and in sound. This makes the two marks as a whole quite distinct and the marks must be judged as a whole. "Rainmaster" does not look like "Rain King" and it does not sound like it. There is not a single common letter in master and in King. The two words are so unlike to the eye and to the ear that counsel for the appellant was forced to rely on the likelihood of deception arising from the two words conveying the same idea of the superiority or supremacy of the article as a mechanism for making a spray similar to falling rain or artificial rain as it was called during the argument. But it is obvious that trademarks, especially word marks, could be quite unlike and yet convey the same idea of the superiority or some particular suitability of an article for the work it was intended to do. To refuse an application for registration on this ground would be to give the proprietor of a registered trademark a complete monopoly of all words conveying the same idea as his trademark. The fact that two marks convey the same idea is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive.' Similarly here, the fact that the two marks convey the same idea, a star in word and a star in logo, is not sufficient in itself to create a deceptive resemblance between them, although this fact could be taken into account in deciding whether two marks which really looked alike or sounded alike were likely to deceive. But that is not this case and for that reason, the applicant's submissions based on the same idea should be rejected. At the conclusion of its judgment in Cooper Engineering , the High Court said (at 539): 'The learned registrar was right in holding that the only similarity between the two marks is the common prefix "Rain" and that this similarity is not sufficient to create a reasonable likelihood of deception when the remaining portions of the marks are so different.'


case_text: the respondent submitted that any emphasis solely on the similarities would be misconceived. In considering marks as a whole where they contain common words, one should look primarily to those aspects of the marks that are not common: Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd [1952] HCA 15 ; (1952) 86 CLR 536 at 538 539; Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd (2004) 63 IPR 38 at [40]; Chantelle v Kabushiki Kaisha Chandeal (1996) 36 IPR 549 at 568; and Re London Lubricants (1920) Ltd's Application [1925] 42 RPC 264 at 279. The same can be said with respect to the words 'STARR' and 'Star', even coupled with the star logo in each case; the similarity is not sufficient to create a reasonable likelihood of deception where the remaining portions of the marks are so different. As was recently said by a Full Court of this Court in Melbourne Chinese Press at [40]: 'Cases like Cooper Engineering, Coca-Cola Co [(1942) 59 RPC 127] and Sports Café [(1998) 42 IPR 552] do not support the proposition ... that non-descriptive words should be emphasised in considering deceptive similarity. In considering marks as a whole, where they contain common words, one should look primarily to those aspects of the marks that are not common: Cooper Engineering at 538-9. Where distinctive aspects of the marks are the aspects that would remain with a consumer, that is sufficient to avoid confusion: Coca-Cola Co at 134. Elements of the mark were not discounted in these cases because they were descriptive but because they were common to the two marks.' But there is another reason. It was submitted on behalf of the applicant that there was visual similarity between the two marks in their use of colours blue and white. But that is where the similarity starts and finishes. One has only to view the evidence of the depiction of the two marks as a whole to see that the different shades of those colours, particularly the blue, and the juxtaposition of those colours, in the case of the registered mark, the dark blue lettering on the sky blue background and, in the case of the respondent's mark, the white lettering on the dark blue background, is such that there is no visual similarity; the contrast is stark.


case_text: seemed to be common ground as to the governing principles to be applied in a case where the question is whether a mark so nearly resembles a registered mark that it is likely to deceive or cause confusion. It is a different comparison than that for substantial identity; in the case of deceptive similarity, it is one of impression based on recollection: Shell at 415, which will be an imperfect recollection, measured against a standard of side by side comparison. As Windeyer J said in Re Bali Brassiere Co. Inc's Registered Trade Mark and Berlei Ltd's Application [1968] HCA 72 ; (1968) 118 CLR 128 at 139: 'The governing principles are not in dispute; and little is to be gained by the quotation of enunciations and elaborations of them in other cases. The difficulty is always in their application to the facts of the case in hand.'


case_title: Re London Lubricants (1920) Ltd's Application [1925] 42 RPC 264