case_text: These submissions are made good by a number of authorities to which I was referred: Titan at 75-76; Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 (' Caroma' ) at 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 (' Brickwood' ) at 588-589 per King J. In Titan, McLelland J set out at 75-76 the approach that should be followed by the Court: 'Proceedings in the court on "appeal" from a decision of the Commissioner pursuant to s 60(5) are original proceedings and not an appeal in any technical sense. The duty of the Court in such proceedings is to exercise de novo the function of the Commissioner under s 60. The Court must exercise that function only on the basis of the evidence adduced in the proceedings before it. The material before the Commissioner or his delegate when he made the decision appealed from is not to be treated as being before the Court unless it is tendered and admitted in the proceedings before the Court (cf the Supreme Court Rules , Pt 81 , r 14). Evidence which was not before the Commissioner may also be admitted before the Court. The Court, exercising the function of the Commissioner, may take into account a ground of opposition specified in s 59 whether relied on by the opponent or not (see s 60(2)). This recognises that a decision under s 60 has a public aspect going beyond the mere resolution of a contest between the applicant and the opponent. This public aspect is further recognised by s 149 of the Act which contemplates active intervention by the Commissioner before the Court, with leave, in such proceedings as this. The non-appearance, or withdrawal, of the opponent provides an obvious occasion for such intervention where there are matters to which, in the public interest, the Commissioner desires to have the Court direct its attention. Where a ground of opposition depends on some fact being established, the onus of proof of that fact rests upon the party seeking to establish that ground of opposition, that is, the opponent or the Commissioner, as the case may be... Subject to its jurisdiction being established, the issue for the Court is, as it was for the Commissioner, whether the patent, if granted, would be clearly invalid on one of the relevant grounds. Unless invalidity on such a ground is clearly shown, the application should be allowed to proceed to a grant and the validity of the patent left to be determined in infringement or revocation proceedings.' 13 In Caroma , Walsh J was confronted with a situation like that of the present case, in that neither the respondent-opponent nor the Commissioner appeared. Walsh J found at 324-325: 'It was said that the only evidence to be taken into consideration in deciding the appeal is that tendered at the hearing and admitted by me. In my opinion that submission is correct. ...[T]he enactment that the Tribunal may admit further evidence ought not to be taken, in my opinion, as implying that the Tribunal must treat all evidence which has been given at a hearing before the Commissioner or his officer as being evidence in the proceeding before the Tribunal. As Kitto J. said in Kaiser Aluminum & Chemical Corporation v Reynolds Metal Co. [1969] HCA 7 ; (1969), 120 CLR 136, at p. 142, an appeal under s.60(5) of the Act is in truth an original proceeding and "it must be decided upon the evidence adduced before this Court". His Honour referred to some authorities dealing with the nature of the jurisdiction exercised by this Court in taxation "appeals". One of those authorities was Commissioner of Taxation v Finn [1960] HCA 69 ; (1960), 103 CLR 165. In that case, at pp. 167-168, Fullagar J. cited passages from the judgment of Williams J. in Federal Commission of Taxation v Sagar [1946] HCA 6 ; (1946), 71 CLR 421, at pp. 423-424, including the following passage: "The appeal is a proceeding in the original jurisdiction of the Court so that, unless the parties agree that the evidence given before the Board shall be used on the appeal, the evidence must be tendered again, and, as the appeal is a rehearing, further evidence can be called". In the present case the Supervising Examiner... who heard the matter, had before him two statutory declarations in support of the opposition. These have not been tendered before me. ... There has been no proof before me of any facts alleged in the statutory declarations supporting the opposition, except to the extent that the affidavit or oral evidence tendered on behalf of the appellant refers to those facts.' 14 In Brickwood, King J had before him a patent appeal in which the opponent did not appear and had indicated it would withdraw its opposition, and the Commissioner indicated he did not intend to take any active role in the matter. King J allowed the appeal and ordered that the patent application proceed to grant. His Honour said at 588-589: '[a]s the burden of proving to the Court that no valid patent could issue from the patent application was upon the respondent, the appellant was under no duty before the Court to ventilate the Commissioner's reasons for his decision, or to put before the court any of the evidence put by the parties before the Commissioner. Thus, in view of the respondent's withdrawal and the attitude of the appellant, the Court had before it an opposition unsupported by any evidence or opponent. This was, I think, a basis for allowing the appeal. In the absence of intervention by the Commissioner, there was then no way in which the issues raised in the opposition proceedings could be put before the Court, and the Court had before it an accepted application which it was proper to require the Commissioner to grant. In my view, the Commissioner's expressed attitude of passivity justified my making such an order. I do not think that this view is inconsistent with the judgment of Walsh, J. in Caroma Sales Pty Ltd v Philmac Pty Ltd (1972), 46 ALJR 324, in which case the appellant adduced affidavit evidence and called oral evidence on a patent appeal hearing at which neither the respondent nor the Commissioner appeared. It is to be distinguished from the present case in at least two respects. In the first place, the appellant, which was, as here, the patent applicant, voluntarily proceeded with the hearing... The question whether it would have needed to proceed with the hearing, if it had not wished to seek leave to amend, was not raised. In the second place, the respondent did not consent, either expressly or by implication, to the appellant's course of action. All that it did was abstain from appearing. I think therefore that in the circumstances, the orders I have made were justified.'


case_outcome: followed

case_text: These submissions are made good by a number of authorities to which I was referred: Titan at 75-76; Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 (' Caroma' ) at 324 per Walsh J; Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 (' Brickwood' ) at 588-589 per King J. In Titan, McLelland J set out at 75-76 the approach that should be followed by the Court: 'Proceedings in the court on "appeal" from a decision of the Commissioner pursuant to s 60(5) are original proceedings and not an appeal in any technical sense. The duty of the Court in such proceedings is to exercise de novo the function of the Commissioner under s 60. The Court must exercise that function only on the basis of the evidence adduced in the proceedings before it. The material before the Commissioner or his delegate when he made the decision appealed from is not to be treated as being before the Court unless it is tendered and admitted in the proceedings before the Court (cf the Supreme Court Rules , Pt 81 , r 14). Evidence which was not before the Commissioner may also be admitted before the Court. The Court, exercising the function of the Commissioner, may take into account a ground of opposition specified in s 59 whether relied on by the opponent or not (see s 60(2)). This recognises that a decision under s 60 has a public aspect going beyond the mere resolution of a contest between the applicant and the opponent. This public aspect is further recognised by s 149 of the Act which contemplates active intervention by the Commissioner before the Court, with leave, in such proceedings as this. The non-appearance, or withdrawal, of the opponent provides an obvious occasion for such intervention where there are matters to which, in the public interest, the Commissioner desires to have the Court direct its attention. Where a ground of opposition depends on some fact being established, the onus of proof of that fact rests upon the party seeking to establish that ground of opposition, that is, the opponent or the Commissioner, as the case may be... Subject to its jurisdiction being established, the issue for the Court is, as it was for the Commissioner, whether the patent, if granted, would be clearly invalid on one of the relevant grounds. Unless invalidity on such a ground is clearly shown, the application should be allowed to proceed to a grant and the validity of the patent left to be determined in infringement or revocation proceedings.' 14 In Brickwood, King J had before him a patent appeal in which the opponent did not appear and had indicated it would withdraw its opposition, and the Commissioner indicated he did not intend to take any active role in the matter. King J allowed the appeal and ordered that the patent application proceed to grant. His Honour said at 588-589: '[a]s the burden of proving to the Court that no valid patent could issue from the patent application was upon the respondent, the appellant was under no duty before the Court to ventilate the Commissioner's reasons for his decision, or to put before the court any of the evidence put by the parties before the Commissioner. Thus, in view of the respondent's withdrawal and the attitude of the appellant, the Court had before it an opposition unsupported by any evidence or opponent. This was, I think, a basis for allowing the appeal. In the absence of intervention by the Commissioner, there was then no way in which the issues raised in the opposition proceedings could be put before the Court, and the Court had before it an accepted application which it was proper to require the Commissioner to grant. In my view, the Commissioner's expressed attitude of passivity justified my making such an order. I do not think that this view is inconsistent with the judgment of Walsh, J. in Caroma Sales Pty Ltd v Philmac Pty Ltd (1972), 46 ALJR 324, in which case the appellant adduced affidavit evidence and called oral evidence on a patent appeal hearing at which neither the respondent nor the Commissioner appeared. It is to be distinguished from the present case in at least two respects. In the first place, the appellant, which was, as here, the patent applicant, voluntarily proceeded with the hearing... The question whether it would have needed to proceed with the hearing, if it had not wished to seek leave to amend, was not raised. In the second place, the respondent did not consent, either expressly or by implication, to the appellant's course of action. All that it did was abstain from appearing. I think therefore that in the circumstances, the orders I have made were justified.'


case_outcome: cited

case_title: Interchase Corporation Limited (In Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141

case_text: was submitted on behalf of the Conservation Council that the manner in which the return of the subpoena had been ordered in the Documents for Subpoena document, insofar as categorisation and tabulation was concerned, engaged with particular observations which I made, by reference to, in turn, to observations made particularly by Pincus J in Interchase Corporation Limited (in Liquidation) v Grosvenor Hill Queensland Proprietary Limited (No 1) (1999) 1 QR 141 (Interchase), in my judgment in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451 (Granitgard), at particularly para 28.


case_outcome: considered

case_title: Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 2) [2008] FCA 1451


case_text: A few additional words should be said in relation to the Applicant's argument under reg 20.3(3)(a)(i). The Respondent accepts that he did not consider the Applicant's registration under reg 20.3(3)(a)(i). That is not surprising. He was not asked to do so. The fact that the Applicant did not ask to be registered under reg 20.3(3)(a)(i) undermines his assignment of error at both the administrative and judicial review levels. With respect to the administrative level, the rule is that the decision-maker is not obligated to make a party's case for them: Abebe v Commonwealth [2004] HCA 32 ; (1999) 197 CLR 510 at [187] . The Applicant acknowledges this rule but submits that he did make his case in his application for registration that he had "been employed as required by paragraph 198(4)(c) of the [1990 Patents] Act." I do not accept that this general statement was sufficient to put the Respondent on notice that the Applicant was making a case under reg 20.3(3)(a)(i). I also do not accept the Applicant's submission that the "Respondent is required at law to consider each of the provisions of 20.3(3) before he can find that a person does not satisfy them." In the absence of evidence or materials that would clearly put an administrative decision-maker on notice of an unarticulated claim, there is no affirmative burden on the decision-maker to scour the papers and the legislation sua sponte to see if there is a basis on which a party's case may succeed: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] - [60] ; Hill v Repatriation Commission (2005) 218 ALR 251 at [105]-[107]. I am satisfied that neither the Applicant's general statements that he had met the employment qualification nor any of the supporting materials he filed with the Respondent were such as to squarely raise his current claim that he was employed as his own (or anyone else's) technical assistant.


case_text: Before turning to consider each of the grounds of review, it must be noted that, to a significant extent, the Applicant's written and oral submissions proceeded, or at least appeared to proceed, on the premise that the Court's task involved a reconsideration of the merits of the decision. That premise is not correct. As was said by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 11 It is not disputed that the factors the Respondent was required to take into account were affected by the proper construction of reg 20.3(3)(a). The issue was whether the Respondent's construction of reg 20.3(3) (see [6] above) was the proper construction. In my view, subject to one exception which did not affect the Applicant adversely, it was the proper construction. 12 The Respondent concluded that reg 20.3(3)(a)(ii) refers to employment in a company or firm in which an employee undertakes patent work for that company or firm and does not extend to include experience in a law firm undertaken on behalf of client companies or firms. Again, subject to one issue which does not affect the outcome of the current application, the Respondent's construction was consistent with the express words of the 1990 Patents Act and the Regulations. 44 The Applicant nevertheless submitted that if that was the object of the legislation and the Regulations, then the regulation is both over and under-inclusive. It is over-inclusive in the Applicant's submission because a person who is employed as a technical assistant for one year but spends the whole year making photocopies will nevertheless qualify for registration even though he or she has gained no experience with patent specifications. It is under-inclusive because a person who has spent a year drafting patent specifications under the supervision of a registered practitioner outside a traditional patent practice or a corporate context (eg at a university legal department) may not qualify for registration. (Whether the Respondent would or should consider a university legal department under those circumstances as a "patent attorney's practice" within the meaning of reg 20.3(3)(a)(i) is an interesting question.) These criticisms, though not without force, do not advance the Applicant's case. Every system of rules-based credentialing, and every bright-line rule generally, suffers from the same flaws: no doubt there are many articled clerks who spend two years in a conference room reviewing documents and never learn to draft a pleading or a contract; and, no doubt, there are many 17 year-olds who are mature enough to vote (and some 19 year-olds who are not). Despite these drawbacks, bright-line rules are preferred over case-by-case decision-making in many instances because it is judged by the rule-making authority where the advantages in administrative efficiency, transparency, and certainty outweigh the disadvantages of over and under-inclusiveness. Ultimately, the Applicant's case boils down to the complaint that the Regulations are unfair and ought to be redrawn. However, the rule the Applicant seeks, whereby an Australian legal practitioner, having provided patent advice for the requisite period, is exempted from having to obtain further work experience in order to become a registered patent attorney, is a matter for government to provide for, not the courts. While the rejection of his application by the Respondent may seem unjust to the Applicant, it must be remembered in considering an application for judicial review that "the court has no jurisdiction simply to cure administrative injustice": Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36. 45 For the foregoing reasons, the Applicant's construction point fails.


case_text: A number of principles emerge from consideration of these provisions of the 1990 Patents Act . First, the Act recognises the existence and separate roles of registered patent attorneys and legal practitioners: ss 200, 201 and 202. Secondly, both registered patent attorneys and legal practitioners may apply for or obtain patents, prepare documents for the purposes of the 1990 Patents Act and give advice (other than advice of a scientific or technical nature) about the validity or infringement of patents: ss 201 and 202 and see also Biochem Pharma Inc v Commissioner of Patents (1998) 82 FCR 87 , 92 (per Hill J). However, only a registered patent attorney (or a legal practitioner under the instruction of a registered patent attorney) may draft patent specifications or a document relating to an amendment of a specification: s 202. Finally, ss 201(8) to (11) exempt from the area of work restricted to registered patent attorneys, work done for an employer (or a company which is a member of the same group as the person's employer). Accordingly, individuals and companies may prosecute their own patent applications and draft their own patent specifications. The last principle reinforces that reg 20.3(3)(a)(ii) of the Act, properly construed, permits experience gained whilst employed by a company engaged in their own patent applications and specifications as relevant experience for the purposes of registration as a patent attorney. 30 None of those provisions support the contention that reg 20.3(3)(a)(i) and / or (ii) should be construed to include a person in the position of the Applicant as having the necessary work experience to qualify as a registered patent attorney. As noted earlier, the 1990 Patents Act clearly marks out the drafting of patent specifications as the exclusive domain of registered patent attorneys. Read in that context, that the three categories of work experience in reg 20.3(3)(a) should be directed toward the acquisition of experience in the construction and drafting of specifications is neither anomalous nor unreasonable. 31 Since 1981, the patents legislation and regulations have been the subject of a number of reviews, recommendations and changes. The Respondent submitted, and I accept, that since the 1980s a number of themes have emerged from the patents legislation and the regulations as they have existed from time to time: first, a concern with protecting the public from unqualified and inexperienced persons undertaking work in relation to patents; secondly, the introduction in the 1980s and the 1990s of increasing degrees of competition; and, thirdly, an attempt to balance those two themes: see Biochem 82 FCR 87 at 88. The balance has been achieved in three ways: (1) acknowledgement that prior to registration as a patent attorney, relevant experience may be gained in the public or private sector; (2) acknowledgement that the business of registered patent attorneys and legal practitioners overlaps but that registered patent attorneys (or legal practitioners under the instruction of a registered patent attorney) retain the exclusive right to draft patent specifications; and (3) adoption of a narrow exemption that permits persons to continue to prosecute their own patent applications or those of their employers. 32 In the early 1980s, the "employment as prescribed" requirement prior to registration was limited to employment for a period by a patent attorney. The period was six months for persons who had previously been employed in the Patents Office as an examiner for a prescribed period and, in other cases, for not less than one year: ss 133(3)(e), 134, 136(1) and (5) and 137 of the 1952 Patents Act and reg 21 of the Patent Attorneys Regulations 1954 (Cth). 33 In a report to the Minister for Science and Technology dated 29 August 1984 from the Industrial Property Advisory Committee entitled "Patents, Innovation and Competition", the Committee recommended, inter alia , that the qualifying period in employment be made a uniform period of 12 months in the public and the private sector: recommendation 39(iii). The Committee explained the role of Patent Attorneys in the following terms (see para 17.1 and 17.5): Patent attorneys are a body of professionals specialising in patent law and practice, and particularly in the searching, preparation, and prosecution of patent applications in Australia and abroad. While patent applicants may prosecute their own applications before the Office, patent attorneys have the exclusive right under the Patents Act to prepare specifications for a fee, so they have an effective professional monopoly to handle patent applications. They advise clients in relation to patent validity and infringement and also deal with trade marks, industrial designs, and licensing. The care and skill with which patent applications are prepared materially influence the scope and value of the protection obtained under a patent. The drafting of patent specifications and claims requires special skill and knowledge of the applicable law and practice, as well as a capacity to understand the technology involved. No amount of legal skill will avail if the subject matter is not understood. If Australian inventors are to obtain adequate protection for their inventions here and abroad, the assistance of people possessing these attributes must be available in Australia. ... We have already commented on the important service role which patent attorneys play in preparing and filing patent applications in Australia and abroad. We believe that it is appropriate for the drafting and filing of patent specifications for reward to be the exclusive domain of a trained and regulated professional body. The work is highly technical and it is an integral part of the whole process of effective innovation. ... The Committee therefore accepts that a limited monopoly of practice by patent attorneys should be retained. (Emphasis added.)


case_text: Nevertheless, the purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation ( Saraswati [1991] HCA 21 ; 172 CLR 1 at 22), ... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies[.] See also SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 at [44] - [45] (noting that where a party contends that a provision should not be given its literal or plain meaning, such a contention may lack force absent a plausible competing construction). The only exception to this rule is where the ordinary meaning would lead not just to an anomaly, but to a result that is "manifestly absurd" or "unreasonable": Saraswati [1991] HCA 21 ; 172 CLR 1 at 22; see also Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398 at [23].


case_text: With respect to the Applicant's attempt to agitate the reg 20.3(3)(a)(i) argument in this Court, "[i]t is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law": SZIGW v Minister for Immigration and Citizenship [2007] FCA 203 at [13] (citations omitted; emphasis added); see also Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 (stating that failure to timely raise a point may be deemed waiver of that point). In the instant case, it is at best questionable whether all of the relevant facts that would establish beyond controversy that the Applicant has been employed as a technical assistant are before the Court. In particular, the record does not disclose that the Applicant has ever drafted a patent specification or prosecuted a patent (which is not surprising, given that evidence to that effect might also suggest that the Applicant had committed an offence under s 202 of the 1990 Patents Act ): cf Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141 at [31] (suggesting that a "technical assista nt" is one who has the duty of prosecuting patent applications on behalf of clients, under the supervision of a registered patent attorney). Even accepting the Applicant's statutory declaration at face value, it states only that he has "liaised with patent attorneys in relation to the preparation and filing of patent specifications on behalf of [his] clients." Accordingly, the Applicant's claim under reg 20.3(3)(a)(i) would ordinarily fail at the outset both because it was not clearly raised below and because not all of the facts necessary to make good the point have been established beyond controversy.


case_outcome: applied

case_text: None of the considerations raised by the Applicant demonstrated that the decision of the Respondent was invalid. Many of the considerations raised by the Applicant were, in fact, an attack on the merits of the decision and were in relation to facts and matters about which the Respondent and the Applicant held different views. Further, each of the first three matters was addressed and dismissed in relation to the allegation of a denial of natural justice or a lack of procedural fairness. With respect to the fourth matter, it is well settled that the expression of a tentative conclusion without more will not support a claim of apprehended bias; a decision-maker "may form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions and being given an opportunity to deal with them": Johnson v Johnson (2000) 201 CLR 488 at [13] (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Here, the Respondent expressed his tentative opinion to the Applicant in his letter of 9 August 2007 and expressly gave the Applicant an opportunity to respond. After reviewing the Applicant's response, which presumably was assisted and focused by knowledge of the Respondent's tentative opinion, the Respondent then made his decision. Under these circumstances, I do not consider that "a fair-minded lay observer might [have] reasonably apprehend[ed] that the [decision-maker] might not bring an impartial mind to the resolution of the question the [decision-maker] [wa]s required to decide": Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344 (per Gleeson CJ, McHugh, Gummow and Hayne JJ) .


case_text: The Applicant placed considerable emphasis on the absence of the word "registered" in reg 20.3(3)(a)(i). As the Respondent submitted, the omission is "curious". However, the omission does not assist the Applicant for at least two reasons. First, as Heerey J noted in Eli Lilly & Company v Pfizer Ireland Pharmaceuticals (No 2) [2004] FCA 850 ; (2004) 137 FCR 573 at [8] , "registered patent attorneys" in s 200(2) of the 1990 Patents Act means registered in Australia. If that is correct (and it was not suggested that his Honour was wrong), the practical effect of the omission may be no more than a recognition that applicants who have worked overseas as a technical assistant for a patent attorney who is not registered under the 1990 Patents Act , may still satisfy the employment requirement of reg 20.3(3)(a)(i). Secondly, even if it were accepted that reg 20.3(3)(a)(i) is not referring to a registered patent attorney (a submission I do not accept), the Applicant would have to demonstrate that he has been employed as a technical assistant in the practice of a patent attorney, practicing as a patent attorney within the meaning of s 201 of the 1990 Patents Act . As a matter of ordinary English syntax, one cannot be employed as an assistant to oneself; thus the Applicant cannot satisfy the criterion of having been employed as a technical assistant in a patent attorney's practice.


case_outcome: discussed

case_text: In Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 , reversed on other grounds by Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 , Burchett J (at 317) accepted the definition of natural justice to be commensurate with the statement of principle in Butterworths Legal Dictionary (ed Nygh P, and Butt, P): The right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have the decision based on logically probative evidence. ... 69 The Applicant did not seek to submit that the current circumstances (or any other feature of the matter) founded a case of actual bias. The Amended Application merely asserted apprehended bias. In fact, the Applicant sought, impermissibly, to use this ground to re-agitate the merits of the decision by reference to four matters: (1) that relevant documents were allegedly destroyed; (2) the manner in which the Applicant was described in documents by the Acting Secretary to lack credibility or have a credibility gap (without being given the opportunity to respond) and to have "strayed" into the field of patents; (3) that the Respondent's decision was described by the Acting Secretary as "judicially excellent" and (4) that the decision-maker had expressly made his thoughts known about the operation of reg 20.3(3)(a)(ii).


case_title: Hill v Repatriation Commission (2005) 218 ALR 251


case_title: Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1141


case_title: Johnson v Johnson (2000) 201 CLR 488


case_text: I cannot accept such a construction. It is true that s 15AA of the Acts Interpretation Act 1901 (Cth) directs a court to prefer a construction promoting the purpose or object of an Act. It is also true that patent textual ambiguity is not required in order to consult purpose (ie reference to purpose may be had both to raise as well as to resolve ambiguity): Saraswati v Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 22; see also Kowalski v Domestic Violence Crisis Centre Inc [2001] FCA 1082 ; (2001) 113 FCR 67 at [23] .


case_text: The Applicant contended that the reference to "in a company" should not be read literally but should be extended to include employment " in a company or a firm" . The Respondent adopted that construction in par 5.8 of his reasons for decision (see [7] above). I do not accept that references in reg 20.3(3)(a)(ii) to "company" should be read in that manner. A law firm, other than an incorporated legal practice, is not a company within the meaning of the Corporations Act ": see ss 9 and 119 (stating that a company means a company registered under the Corporations Act and comes into existence as a body corporate on the day of registration); Legal Profession Act 2004 (Vic) ss 2.7.2 and 2.7.4 (stating that an incorporated legal practice is a company within the meaning of the Corporations Act ). The Applicant accepted that his firm is not registered under the Corporations Act . Moreover, even assuming that the definition found in the Corporations Act should not be interpolated into reg 20.3(3)(a)(ii), the ordinary common law understanding of company would not assist the Applicant either: Macleod v Queen [2003] HCA 24 ; (2003) 214 CLR 230 at [28] (stating that the essential meaning of "company" since the time of Salomon's Case , has been as a body with a separate legal identity); see also Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525 at [3] - [4] (observing the historical distinction, dating back to Salomon's Case , between firms (partnerships) and companies (corporations)); Salomon v Salomon & Co Ltd [1897] AC 22. Again, the Applicant presented no evidence that White SW Computer Law is a distinct legal entity as opposed to an unincorporated sole proprietorship.


case_text: Finally, a number of the Applicant's allegations proceeded on the basis that the Respondent was under an obligation to provide the Applicant with an opportunity to comment on documents (specifically, memoranda from the Acting Secretary of the Professional Standards Board for Patent and Trade Marks Attorneys dated 4 October and 11 October 2007) which contain no more than opinions on, or rejections of, the Applicant's material. That premise is wrong. An applicant in an administrative context is entitled to comment only on adverse information that is "credible, relevant and significant": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 88-90 and VEAL [2005] HCA 72 ; 225 CLR 88 at [15] and [17]. "Credible, relevant and significant" material is "information that cannot be dismissed from further consideration by the decision-maker before making the decision": VEAL [2005] HCA 72 ; 225 CLR 88 at [17] . As the Respondent's letters of 9 August 2007, 10 and 11 October 2007, and 22 November 2007 demonstrate, the Respondent took the consistent view that the Applicant did not satisfy the requirements of reg 20.3(3)(a) based on a plain reading of the regulation. There is no evidence that the Respondent could not or did not dismiss from further consideration the Acting Secretary's opinions of the Applicant's material, given that his 11 October 2007 rejection of the Applicant's application was for the same reason as his 9 August 2007 tentative rejection - namely, that even accepting that all of the material provided by the Applicant was true and correct, the Applicant failed as a matter of law to satisfy the requirements of reg 20.3(3)(a) - and did not turn on any credibility or evidentiary issues. That the Respondent had already tentatively reached that view before ever receiving the October memoranda from the Acting Secretary conclusively demonstrates that the memoranda played no part, much less a significant one, in the Respondent's consideration or decision.


case_text: No decision was made to register the Applicant on 7 August 2007 because it is clear from the face of the document that the Respondent was directing only that the three persons whose names were ticked be registered while the two persons without ticks were not to be registered due to the handwritten reasons. However, even if a "decision" had been made (and it had not), the Applicant would be in no better position because the Applicant did not satisfy reg 20.3(3)(a). Any "decision" would have been a "decision" in error and without legal foundation. Accordingly, the Respondent would not have been prevented from making a later decision: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], [52] and [54]. 67 This ground of review is also without foundation.


case_title: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1


case_title: Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82

case_text: To the extent that the Respondent considered that employment in a firm could be considered employment in a company for the purposes of the regulation, it follows that he took an irrelevant consideration into account. However, that error may be put to one side because, on any view, it was an error which favoured the Applicant. If a proper construction of reg 20.3(3)(a)(ii) had been adopted, the result would not have been any different and thus the error was harmless: Re Refugee Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 at [104] (stating that relief on judicial review will be refused where the court is satisfied that the error did not affect the outcome of the administrative decision). 24 I now turn to a more detailed consideration of the purpose and context of the 1990 Patents Act as foreshadowed above. As these reasons for decision will demonstrate, there is nothing in the other provisions of the 1990 Patents Act or the Regulations, or the historical materials, which suggests, let alone supports, the Applicant's construction of reg 20.3(3)(a)(i) or (ii). On the contrary, those materials all demonstrate that it was the intention of the Parliament that a person in the position of the Applicant should not be registered as a patent attorney. 25 Section 198 forms part of Pt 1 of Ch 20 of the 1990 Patents Act . Chapter 20 is entitled "Patent Attorneys". Part 1 is entitled "Registration, Privileges and Professional Conduct". Offences are dealt with in Pt 2. 53 The failure by the decision maker to consider this issue thus does not assist the Applicant because consideration of it would not have led to a different result: Aala [2000] FCA 57 ; 204 CLR 82 at [104] . For these additional reasons, the Applicant's construction point fails. 54 The allegations were put on three bases: (1) that the Respondent "admit[ted] that the Respondent had deleted all the relevant emails which may have clearly established bias"; (2) to the extent that the Respondent had discovered materials, that documentation revealed that the Respondent did not wish to meet the applicant and the material contained other matters detrimental to the Applicant; and (3) the decision-maker had expressly made his thoughts known about the operation of reg 20.3(3)(a)(ii). 55 These grounds of review are also without merit, both independently and because, even if made out, they could not change the outcome in light of my conclusions on the proper construction of reg 20.3(3)(a) set out above.


case_text: I cannot accept such a construction. It is true that s 15AA of the Acts Interpretation Act 1901 (Cth) directs a court to prefer a construction promoting the purpose or object of an Act. It is also true that patent textual ambiguity is not required in order to consult purpose (ie reference to purpose may be had both to raise as well as to resolve ambiguity): Saraswati v Queen [1991] HCA 21 ; (1991) 172 CLR 1 , 22; see also Kowalski v Domestic Violence Crisis Centre Inc [2001] FCA 1082 ; (2001) 113 FCR 67 at [23] . 19 Nevertheless, the purposive approach to statutory construction is not a carte blanche licence to courts to depart from unambiguous plain meaning. While purpose may sometimes be used to add, subtract, or clarify words in a statute or regulation ( Saraswati [1991] HCA 21 ; 172 CLR 1 at 22), ... where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is "the ordinary meaning" to be applied. A court cannot depart from "the ordinary meaning" of a legislative provision simply because that meaning produces anomalies[.] See also SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 at [44] - [45] (noting that where a party contends that a provision should not be given its literal or plain meaning, such a contention may lack force absent a plausible competing construction). The only exception to this rule is where the ordinary meaning would lead not just to an anomaly, but to a result that is "manifestly absurd" or "unreasonable": Saraswati [1991] HCA 21 ; 172 CLR 1 at 22; see also Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2007) 74 IPR 398 at [23]. 43 As noted earlier, a review of the statutory context, legislative history, and legislative purpose reveals an attempt to balance two competing objects: (1) the need to reduce barriers to entry and competition and thus reduce costs of patent attorney services; while (2) maintaining strict professional qualification requirements and thus safeguarding the public interest in receiving only high quality services. This understanding of context and purpose does not throw doubt on the construction of reg 20.3(3)(a) such as required by the High Court in Saraswati to justify judicial amendment of a statute or regulation that departs from the ordinary meaning. The legislative and regulatory scheme has hit on a compromise whereby in-house corporate patent practice (which would tend to be focused much more on out-of-court matters such as patent drafting and prosecution), but not ordinary law firm practice (which would tend to focus more on the giving of advice with respect to court-related matters such as validity and infringement proceedings), satisfies the registration requirements. This is entirely consistent with a legislative objective of partial deregulation while ensuring that high standards are maintained with respect to the complex technical arena of patent drafting and prosecution.


case_outcome: referred to

case_title: Salomon v Salomon & Co Ltd [1897] AC 22


case_title: Sons of Gwalia Ltd v Margaretic [2007] HCA 1 ; (2007) 81 ALJR 525


case_text: Fourthly, the Applicant also submitted that he should have been informed of and been given an opportunity to respond to the Respondent's construction of reg 20.3(3)(a)(ii). That contention was misconceived. There was no suggestion that: 1. the Applicant had been denied an opportunity to comment on adverse material from other sources ( VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [15] and [17]); 2. the Applicant's account of crucial events was in issue so that he needed to be put on notice that his account had not been accepted ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [36] - [43] ); or 3. the authenticity of the Applicant's material was to be the subject of adverse findings so that he needed to be given an opportunity to comment on it ( VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [54] - [64] .


case_title: SZIGW v Minister for Immigration and Citizenship [2007] FCA 203


case_title: SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83


case_title: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117


case_text: Fourthly, the Applicant also submitted that he should have been informed of and been given an opportunity to respond to the Respondent's construction of reg 20.3(3)(a)(ii). That contention was misconceived. There was no suggestion that: 1. the Applicant had been denied an opportunity to comment on adverse material from other sources ( VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [15] and [17]); 2. the Applicant's account of crucial events was in issue so that he needed to be put on notice that his account had not been accepted ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [36] - [43] ); or 3. the authenticity of the Applicant's material was to be the subject of adverse findings so that he needed to be given an opportunity to comment on it ( VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [54] - [64] . 62 Finally, a number of the Applicant's allegations proceeded on the basis that the Respondent was under an obligation to provide the Applicant with an opportunity to comment on documents (specifically, memoranda from the Acting Secretary of the Professional Standards Board for Patent and Trade Marks Attorneys dated 4 October and 11 October 2007) which contain no more than opinions on, or rejections of, the Applicant's material. That premise is wrong. An applicant in an administrative context is entitled to comment only on adverse information that is "credible, relevant and significant": Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at 88-90 and VEAL [2005] HCA 72 ; 225 CLR 88 at [15] and [17]. "Credible, relevant and significant" material is "information that cannot be dismissed from further consideration by the decision-maker before making the decision": VEAL [2005] HCA 72 ; 225 CLR 88 at [17] . As the Respondent's letters of 9 August 2007, 10 and 11 October 2007, and 22 November 2007 demonstrate, the Respondent took the consistent view that the Applicant did not satisfy the requirements of reg 20.3(3)(a) based on a plain reading of the regulation. There is no evidence that the Respondent could not or did not dismiss from further consideration the Acting Secretary's opinions of the Applicant's material, given that his 11 October 2007 rejection of the Applicant's application was for the same reason as his 9 August 2007 tentative rejection - namely, that even accepting that all of the material provided by the Applicant was true and correct, the Applicant failed as a matter of law to satisfy the requirements of reg 20.3(3)(a) - and did not turn on any credibility or evidentiary issues. That the Respondent had already tentatively reached that view before ever receiving the October memoranda from the Acting Secretary conclusively demonstrates that the memoranda played no part, much less a significant one, in the Respondent's consideration or decision.


case_text: Thirdly, there was no requirement for the Respondent to provide the Applicant with an oral hearing. Not only is there no general rule that decision makers making a decision affecting a person are bound to conduct a face to face interview or a hearing (see Zhang De Yong v Minister for Immigration, Local Government and Ethic Affairs [1993] FCA 489 ; (1993) 45 FCR 384 at 410, but the express words of reg 20.4 refer to written, not oral, forms of application. Even if, contrary to the view I have formed, the Respondent was obliged to provide the Applicant with an oral hearing (a view I reject), that oral hearing could not have produced a different result for the reasons discussed above.


case_text: alleged unconscientious conduct of Telstra in the context pleaded is not inconsistent, indeed, it is totally consistent, with the pleading in [79] of the TCASC. This is particularly so where the terms of s 51AA of the TPA itself refer to conduct that is 'unconscionable' within the meaning of the unwritten law, i.e., the general law, by reference to which the concept of 'unconscientiously' has figured prominently: see Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362 at 415 per Kitto J and Commercial Bank of Australia Ltd v Amadio at 461 per Mason J. Nor, in my view, can the pleading at [79] of the TCASC be rejected on the basis that it is out of time. Having regard to the way the allegation is pleaded, in particular in its reliance on [76] and [78] and the references therein to Telstra's use and continued use of the confidential information, it is strongly arguable that a cause of action arises each time Optus suffers loss or damage by reason of a further contravention by Telstra of s 51AA of the TPA. In these circumstances, as Optus submits, the limitation period pursuant to subs 82(2) of the TPA would only become relevant on the question of relief; not on the question of whether there is a cause of action. Nor do I think Telstra's criticism of the way in which this matter is pleaded warrants a denial of leave being granted in the terms sought. Any such deficiency should be capable of being remedied by further and better particulars and only if it cannot, might an application for its striking out be entertained.


case_text: points out that at all times since the commencement of the proceedings its pleading included the allegation that Telstra's use of Optus' confidential information for improper purposes 'was and is unconscientious and in breach of the duty of confidentiality owed by Telstra to Optus Networks in respect of the confidential information'. Optus submits that these words, and in particular the word 'unconscientious', were sufficient to raise the claim that now appears in more specific terms in [79] of the TCASC. Section 51AA imports equitable concepts of unconscionable conduct, and in that context the word 'unconscientious' is and always has been associated with the grant of relief in cases of unconscionable dealing. See, e.g., Commonwealth Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447 at 461 per Mason J. In this area, the 'overriding aim of all equitable principle is the prevention of unconscionable behaviour a term which can be seen to encompass duress, undue influence and "unconscionable dealing as such"': ACCC v CG Berbatis Holdings Pty Ltd (No 2) [2000] FCA 2 ; (2000) 96 FCR 491 at 498 per French J, quoted with approval by Gummow and Hayne JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at [99] . Optus submits that the allegation that Telstra's use of Optus' confidential information for improper purposes was 'unconscientious' in previous versions of the pleading was closely associated with the allegation of breach of confidence. Similarly, the allegation of unconscionable conduct now contained in [79] of the TCASC is not at large. That paragraph expressly refers back to [76] and [78] of the TCASC, which plead breach of obligations of confidence. In terms, the unconscionable conduct claim turns upon the same fundamental allegations as the claims for breach of the Access Agreement and equitable breach of confidence. The respective claims are and always have been tied together. There has been no change in Optus' position in this regard. Telstra rejects Optus' submission that Optus' reference to the word 'unconscientious' in the CASC is equivalent to an allegation that Telstra engaged in unconscionable conduct in breach of s 51AA of the TPA. Telstra further rejects Optus' submission that this proposed claim is longstanding and the proposed amendment was merely to 'better and more specifically' articulate the basis of Optus' entitlement for the benefit of Telstra.


case_title: Crest Homes Plc v Marks (1987) 1 AC 829

case_text: the other hand, I have come to the view that 'special circumstances' exist to warrant leave being granted to Optus to use the Lee Outline in the current proceedings, or at least those parts of it referred to in the amended notice of motion. In Springfield Nominees 38 FCR at 223, Wilcox J referred, with approval, to what was said by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 579 of the need for 'special circumstances' if leave was to be granted see too Crest Homes Plc v Marks (1987) 1 AC 829 at 860 per Lord Oliver and as to what that required. Burchett J said: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15(2), by which leave to file an appeal out of time could be granted "for special reasons". The joint judgment described (at 195) the expression "special reasons" in this rule as: "an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the actions in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import. I do not know on what footing one would say that a particular circumstance among these relatively rare circumstances would be 'special' and another not. I do not think his Lordship intended to fetter the court's discretion in this way. I think he was using the words "special circumstances" to express the same idea which is expressed in the rule discussed in Jess v Scott by the words "for special reasons" ...'


case_text: Lee Outline was served in separate proceedings between Telstra and the Australian Telecommunications Authority ('AUSTEL') (in which proceedings, Optus was also a party) (the 'IDD proceedings') on 5 February 1996 pursuant to an order of the Court in the IDD proceedings made on 19 December 1995 (see orders at pp 1 2 of Exhibit PAH-3 in Ex. A). Telstra submits and Optus accepts that a witness statement such as the Lee Outline, brought into existence for the purpose of one set of Court proceedings, is subject to an implied undertaking which precludes its use in other proceedings absent the consent of the party concerned or the leave of the Court: see Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 223 per Wilcox J. Optus says that it was for this reason that it originally sought leave in the 1995 proceedings to use the Lee Outline for other purposes. Optus was granted leave to use the Lee Outline by order of the Court on 26 July 1996. The leave granted by Lockhart J on 26 July 1996 was, relevantly, in the following terms: '1. Subject to 3 and 4 below, the Court grants leave for the use of paragraphs 86-93 and 166-77 of, and attachments "SL8-C and "SL26-C" to, the Outline of Evidence of Stuart Alan Newton Lee dated 5 February 1996 and served by the Applicant in these proceedings ("the Lee Outline") on behalf of [Optus Networks Pty Ltd] in: (i) proposed proceedings in the Supreme Court of New South Wales substantially in the form of Annexure "A" to the Notice of Motion dated 27 June 1996 ("the proposed proceedings"); and/or (ii) a mediation or other dispute resolution procedure with respect to the subject matter of the proposed proceedings, on the basis that such consent is without prejudice to the Applicant's rights to object to, and/or seek a stay of, the proposed proceedings or any such mediation or other dispute resolution procedure. 2. Subject to 3 and 4 below, the Court grants leave for the use of those parts of the Lee Outline referred to in 1 above on behalf of [Optus Networks Pty Ltd] for the purposes of and in accordance with the dispute resolution procedures set out in the Access Agreement dated 14 August 1992.' A complete copy of the orders made by Lockhart J is at pp 166 167 of Exhibit BEH-2 in Ex. 2. Paragraphs 3 and 4 dealt with confidentiality issues and are not directly relevant for present purposes. Optus submits that the use of the Lee Outline in these proceedings on the basis set out in the TCASC is within the scope of the leave granted by Lockhart J, in that it is 'for the purpose of and in accordance with the dispute resolution procedures set out in the Access Agreement dated 14 August 1992'. Telstra disputes this. Telstra submits that the grant of leave to Optus was for a specific purpose which has been spent. The leave granted was limited not at large and Optus is no longer entitled to rely on his Honour's orders again to use the Lee Outline in the current proceedings. A copy of the Access Agreement is annexure C in Ex. 3. The dispute resolution procedures are set out in cl 19 and Schedule 7 of the Access Agreement. In essence, these provisions establish a procedure whereby the parties are to endeavour to resolve disputes in the first instance by discussion or negotiation and, failing this, by reference to an Expert Committee. However, the procedures do not exclude, and indeed expressly contemplate, a party having recourse to court proceedings if a dispute is not resolved by other means: see, in particular, pars 7.5.2 and 7.5.3 of Schedule 7 (see also cl 19.3 and par 7.2.5 of Schedule 7, which contemplate resolution of a dispute 'by whatever means'). It is common ground that Optus initiated the dispute resolution procedures set out in the Access Agreement in late 1996 and early 1997 and indicated that it would be relying primarily on the Lee Outline for this purpose. Optus submits that the terms of the notification of that dispute were commensurate with the scope of the proposed TCASC: the dispute related, in broad terms, to the alleged unauthorised use by Telstra for marketing and similar purposes, in breach of the Access Agreement, of Optus' confidential information obtained by Telstra in the course of the provision of services to Optus pursuant to the Access Agreement: see, in particular, Optus' letter at pp 16 17 of Exhibit PAH-3 in Ex. A. Pursuant to the dispute resolution procedures, initial discussions were held between the parties which failed to resolve the dispute. Optus notified an intention to refer the matter to an Expert Committee for resolution in accordance with the dispute resolution procedures. These proceedings were then commenced by Optus, seeking, inter alia , urgent interlocutory relief from the Court a step expressly permitted under the procedures set out in the Access Agreement: see cl 19.1 and par 7.5.4 of Schedule 7. The application for interlocutory relief ultimately did not proceed, and the matter was subsequently referred for determination by the Expert Committee in accordance with the dispute resolution procedures. Optus submits that the history of the matter as already outlined demonstrates why leave to use the Lee Outline should be granted, consistent with the principles set out in Springfield Nominees 38 FCR at 223 225 and other cases. The key provisions of the Lee Outline are extracted or referred to in the particulars to the TCASC. It constitutes relevant material, sourced from Telstra, which disclosed a prima facie unauthorised use of Optus' confidential information obtained by Telstra in the provision of services to Optus pursuant to the Access Agreement, in respect of which Optus seeks relief in this Court. Optus submits that the use proposed to be made of the Lee Outline is plainly within the intended purpose of the orders that were made on 26 July 1996. The TCASC sets out the very kind of claim that was pursued by Optus pursuant to the dispute resolution procedures referred to in par 2 of the orders and articulated by Optus in the draft summons for the proposed proceedings in the Supreme Court of New South Wales referred to in par 1 of the orders. Optus submits that Telstra should not be permitted to avoid Optus' use of the Lee Outline in these proceedings by reliance on a technicality. Optus submits that there is a further reason for rejecting Telstra's opposition to par 1 of the notice of motion based on the Lee Outline. Although the Lee Outline is referred to in the particulars to the TCASC, it does not constitute part of the pleading itself and nor does it constitute the whole of the material relied upon to support the pleading. As such, even if Optus were not entitled to rely upon the Lee Outline, references to the Lee Outline could be excised from the TCASC and the TCASC could be filed in that form essentially unchanged along with the SFAA in its existing form. Telstra, in its oral submissions, submits that this latter material indicates that there are no 'special circumstances' of the kind referred to in Springfield Nominees to warrant a grant of leave to rely on the Lee Outline. I have come to the firm view that court proceedings, whether they be interlocutory or not, are outside the dispute resolution procedures which are to apply to disputes arising under the Access Agreement. I think this follows from a reading of Schedule 7 to the Access Agreement as a whole, and in that context, cll 7.1.1, 7.5.2, 7.5.3 and 7.5.4 in particular. It follows, from this view, that the use of the Lee Outline in the current proceedings is not within the terms of the leave granted by Lockhart J on 26 July 1996, in particular the leave granted by par 2 of the orders his Honour made that day. Such proceedings are not part of the dispute resolution procedures set out in the Access Agreement. This conclusion is fortified by the very existence of par 1 of his Honour's orders and its reference to the proposed proceedings in the Supreme Court of New South Wales. Paragraph 1 would not have been necessary if such proposed proceedings were embraced by the leave granted in par 2. On the other hand, I have come to the view that 'special circumstances' exist to warrant leave being granted to Optus to use the Lee Outline in the current proceedings, or at least those parts of it referred to in the amended notice of motion. In Springfield Nominees 38 FCR at 223, Wilcox J referred, with approval, to what was said by Burchett J in Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578 579 of the need for 'special circumstances' if leave was to be granted see too Crest Homes Plc v Marks (1987) 1 AC 829 at 860 per Lord Oliver and as to what that required. Burchett J said: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context ... If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. Cf Jess v Scott (1986) 12 FCR 187, where the Full Court was concerned with the construction of O 52, r 15(2), by which leave to file an appeal out of time could be granted "for special reasons". The joint judgment described (at 195) the expression "special reasons" in this rule as: "an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." Of course, if Lord Oliver should be taken to have required the circumstances to be special, not in relation to all the various circumstances of the actions in which the relevant implied obligation has arisen, but in relation to the very small number of cases in which a reason appears why the undertaking might be relaxed, the discretion of the court would be entangled in a rule of quite uncertain import. I do not know on what footing one would say that a particular circumstance among these relatively rare circumstances would be 'special' and another not. I do not think his Lordship intended to fetter the court's discretion in this way. I think he was using the words "special circumstances" to express the same idea which is expressed in the rule discussed in Jess v Scott by the words "for special reasons" ...' In Springfield Nominees 38 FCR at 224, Wilcox J observed that a similar approach was followed by Lockhart J in Sweetman v Australian Thoroughbred Finance Pty Ltd (unreported, Federal Court, Lockhart J, 23 July 1992), and at 225 concluded: 'For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.' The 'special circumstances' in the present case are: (1) That leave had already been granted to Optus to use those parts of the Lee Outline referred to in par 2 of the amended notice of motion in the proposed New South Wales Supreme Court proceedings (par 1 of the orders made on 26 July 1996). (2) The claims in the current proceedings bear, in a number of respects, a remarkable similarity to the claims in the proposed New South Wales Supreme Court proceedings. For example, the declarations claimed in pars 1 and 2 of the SFAA: '1. A declaration that information obtained by Telstra from recording the quantity, source, destination, duration, time of occurrence or kind of telecommunications traffic which is generated by customers of Optus Networks and which passes through any of Telstra's telecommunications networks (the Confidential Information ) is information which is confidential to Optus Networks. 2. A declaration that the use by Telstra of the Confidential Information for the unauthorised purposes as defined in paragraph 15 of the Third Consolidated Amended Statement of Claim is: (a) is [sic] in breach of the Access Agreement; (b) in breach of the duty of confidentiality owed by Telstra to Optus Networks; and (c) unconscionable conduct within the meaning of section 51AA of the Trade Practices Act 1974 (Cth).' when read in conjunction with [15] and [16] of the TCASC, are, save for the s 51AA TPA unconscionable conduct aspect, substantially identical to the declarations claimed in pars 1 and 2 of the Summons in the proposed New South Wales Supreme Court proceedings '1. A declaration that information obtained by the Defendant (Telstra) from measuring the quantity, source, destination, duration or kind of telecommunications traffic which is generated by customers of Optus and which passes through any of Telstra's telecommunications networks ( the confidential information ), is information which is confidential to Optus. 2. A declaration that the use by Telstra of the confidential information for marketing purposes or for any purpose not authorised under the Access Agreement between Optus and Telstra dated 14 August 1992, as amended, ( the Access Agreement ) or not otherwise specifically authorised by Optus ( the unauthorised purposes), is in breach of: (a) the Access Agreement; and (b) the duty of confidentiality owed by Telstra to Optus.' (3) The document (the Lee Outline) did not come into the hands of Optus through the exercise of any process which mandated its production. Indeed, the document was brought into existence only as part of the dispute resolution process, not anterior to it. (4) While it is not possible at this stage to say whether the document will be important to the achievement of justice in the case, it has at least the potential to be important to the proper determination of the case: Springfield Nominees 38 FCR at 225. The factual background to Telstra's opposition to the motion on the second basis outlined in [6](2) supra would not seem to be in dispute although there are clearly differences between the parties as to the implications of some of those facts. In Optus' original Application filed 17 December 1997, there was a claim at [11] for damages pursuant to s 82 of the TPA. Telstra says these were included for the purposes of Optus' claim for damages in respect of an alleged contravention of ss 51A , 52 and 53 of the TPA, presumably by reference to the pleadings at [24] and [29] of the original Statement of Claim filed the same date. On the other hand, Optus says the claim for damages in [11] of the Application is general and not limited to any particular contravention, following claims for declaratory, injunctive and delivery up relief in connection with the confidential information case.


case_text: Mr Siminton relied on the same evidence and submissions which were advanced during the penalty hearing conducted in relation to the contempt findings which I made in Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609: see Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [9] and [11]. This was character evidence given by two of his friends and submissions that he was impecunious but that an unnamed person might be prepared to provide him with some money to pay any fine which the Court might impose.


case_text: On 7 November 2007 I found that Mr Siminton had committed contempt of Court by failing to pay a fine imposed on him by a Full Court within the time stipulated by the Full Court (which included an additional two weeks allowed by the District Registrar under the Full Court's Order): see Australian Prudential Regulation Authority v Siminton (No 8) [2007] FCA 1612. These reasons should be read in conjunction with those in Siminton (No 8). 2 On 19 July 2006 the Full Court ordered that Mr Siminton pay a fine of $50,000 "within 60 days or such further time and by such instalments as the District Registrar may allow." The 60 day period expired on 18 September 2006. On that day the District Registrar ordered that Mr Siminton be granted a further 14 days within which to make payment. The extended period expired on 2 October 2006. The fine was not paid despite the fact that Mr Siminton had the financial capacity to do so, at least in part. I found that Mr Siminton's failure to make at least a part payment was wilful. 3 In dealing with the issues arising in relation to the determination of a penalty the District Registrar drew attention to the following matters: • The contempt was properly to be characterised as "very serious": it was one of a number of contempts which occurred at or about the same time; it involved a failure to pay a fine imposed by the Full Court in respect of a separate finding of contempt; and it involved a deliberate and wilful disobedience of the Full Court's order; and • The failure by Mr Siminton to accept any responsibility for the contempt or to express remorse or contrition.


case_text: Mr Siminton relied on the same evidence and submissions which were advanced during the penalty hearing conducted in relation to the contempt findings which I made in Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609: see Australian Prudential Regulation Authority v Siminton (No 10) [2007] FCA 1814 at [9] and [11]. This was character evidence given by two of his friends and submissions that he was impecunious but that an unnamed person might be prepared to provide him with some money to pay any fine which the Court might impose. 6 In Siminton (No 10) at [15] I identified a number of considerations which are relevant to the determination of penalties for contempt. They are derived from the authorities there referred to and I do not repeat them. I have had regard to them in dealing with this matter. 7 An additional consideration which is relevant in the present matter is that the $50,000 fine, imposed by the Full Court, was imposed in substitution for an order made by the trial judge that Mr Siminton be imprisoned for 10 weeks. The substitution was made because the copy of the Court order which had been served on Mr Siminton and which Mr Siminton had been found to have contravened, did not bear the endorsement required by O 37 r 2 of the Federal Court Rules . Such an endorsement appeared on the copy of the Full Court order which was served on Mr Siminton. 8 I take into account, as I did in Siminton (No 10) , that: • Mr Siminton has not apologised, expressed regret or in any other way sought to purge his contempt. • Mr Siminton has chosen not to provide evidence of his personal and financial circumstances. • Mr Siminton is an undischarged bankrupt who has failed to provide a statement of his affairs in accordance with the requirements of the Bankruptcy Act 1966 (Cth). • Mr Siminton claims to be impecunious. • Mr Siminton has a friend who might be disposed to provide an undisclosed amount of money to meet any fine which might be imposed by the Court. 9 I also accept the District Registrar's submission that the contempt is properly to be characterised as "very serious" for the reasons which she advanced. 10 In the circumstances I do not consider that it is appropriate to impose a penalty other than a term of imprisonment. I have determined that an appropriate penalty is imprisonment for a term of four months.


case_text: J in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 made similar observations at [13]-[16]: The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 119 ; (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131 ; (2005) 220 ALR 211 at [35] - [47] ). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.


case_text: appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to this Court is solely "on a question of law". As Gummow J pointed out in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 , at 178: The existence of a question of law is now not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself: FCT v Brixius (1987) 87 ATC 4963 at 4967. Branson J in Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 made similar observations at [13]-[16]: The nature of an appeal under s 44(1) of the AAT Act was considered in Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 38 AAR 55 by Stone J and me particularly at [10]-[18]. We expressed our approval of the observation made by Gummow J in TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (Cth) [1988] FCA 119 ; (1988) 19 ATR 1067 at 1069-1070 that an appeal "on a question of law" is narrower than an appeal that merely involves a question of law. As his Honour pointed out, where an appeal lies "on a question of law" the subject matter of the appeal is the question or questions of law. That is, the subject matter of the appeal is the question or questions of law stated as required by O 53, r 3(2)(b). The legislature, by creating a statutory right of appeal to a party to a proceeding before the Tribunal in the narrow terms of s 44(1), disclosed an intention to limit the capacity of the Court on an appeal under s 44(1) to review factual findings of the Tribunal. An appeal pursuant to s 44(1) is thus quite different from an appeal from a judicial body under s 24 of the Federal Court Act. An appeal under s 24 is an appeal by way of rehearing (see, Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd [2005] FCAFC 131 ; (2005) 220 ALR 211 at [35] - [47] ). The subject matter of an appeal under s 44(1) of the AAT Act is (shorn of the requirement to determine what, if any, entitlement to relief flows from the answer to the question or questions of law) of the same character as the subject matter of a reference of a question of law to the Court made under s 45 of the AAT Act. In Birdseye Stone J and I also expressed approval of the observation of Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515 at 527 that: If the question, properly analysed, is not a question of law no amount of formulary like "erred in law" or "was open as a matter of law" can make it into a question of law. A mixed question of fact and law is not a question of law within the meaning of s 44(1) of the AAT Act. Stone J and I observed in Birdseye (at [18]): In our view, O 53 r 3(2) discloses an intention that a question of law to be raised on an appeal from the Tribunal should be stated with precision as a pure question of law. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal.


case_text: These principles represent settled law in this country. Reference was made to them recently by Kirby J in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [157] - [161] . 35 I have already referred to the reasons given by the learned Federal Magistrate for his decision. They may be summarised as: • no facts alleged by the applicant could amount to any sexual harassment of the applicant by or on behalf of the second respondent or any of its agents or employees • asking the applicant to read the first respondent's complaint of sexual harassment against him, or by failing to dismiss the first respondent's complaint summarily without calling for his response, were not sexual harassment of the applicant • even assuming that the first respondent was the employee of the second respondent at material times, no facts had been alleged that would or could amount to sexual harassment by the first respondent of the applicant. 36 In this case before me, I have reservations concerning the finding of Jarrett FM, in relation to the potential vicarious liability of the second respondent for the actions of the first respondent, that the claim against the second respondent did not disclose a reasonable cause of action because no facts were alleged by the applicant that would or could amount to sexual harassment of the applicant by the first respondent. 'Sexual harassment' is defined by s 28A SD Act as follows: '(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 37 Vicarious liability of employers for conduct of their employees in breach of Pt II Div 3 of the SD Act is contemplated by s 106, which provides as follows: '(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.


case_text: The power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases. As Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91: 'The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' 44 In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6] ), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27] ), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21] ). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.


case_title: Gauci v Kennedy & Anor [2005] FMCA 1505

case_text: The application before me seeks an extension of time to file and serve out of time a notice of appeal from the decision of Jarrett FM made 12 October 2005 ( Gauci v Kennedy & Anor [2005] FMCA 1505). In that decision the learned Federal Magistrate dismissed the applicant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) (' SD Act '). 2 As explained in the reasons for judgment of Jarrett FM, the substantive application filed by the applicant on 10 August 2004 sought orders from the Federal Magistrates Court under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (' HREOC Act ') that the respondents apologise to the applicant and pay him financial compensation in respect of alleged unlawful discrimination and sexual harassment. The application before me concerns only interlocutory relief obtained by the second respondent as a result of the orders made by Jarrett FM in his decision of 12 October 2005. 3 Limitations of time in respect of filing and serving notices of appeal of decisions of the Federal Court or the Federal Magistrates Court are found in O 52 r 15 Federal Court Rules . The rule provides: '(1) The notice of appeal shall be filed and served - (a) within 21 days after - (i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or (iii) any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.'


case_text: Further, Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 opined that great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.


case_title: Hassan v Hume (2004) FCA 886

case_text: In my view it could not be said that the case before his Honour claiming a breach of Pt II Div 3 SD Act by the second respondent was (to paraphrase the words of Dixon J) so very clear as to justify the summary intervention of the court to prevent the applicant submitting his case for determination. In comparison with other cases where a claim had been dismissed pursuant to r 13.10 FMCR and subsequently considered by this Court, in my view the nature of the applicant's claim was not, for example, hopeless or doomed to failure (contra Hely J in SZFEA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 634 at [6] ), or so obviously untenable that it could not possibly succeed (contra French J in Hassan v Hume (2004) FCA 886 at [27] ), or exhibiting no articulated grounds to support his assertions in relation to sexual harassment (contra the Full Court in SZBMN v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCAFC 268 at [21] ). While these principles do not represent an exhaustive list of characteristics which must be exhibited by claims in order to warrant summary dismissal, they nevertheless provide some assistance in considering the types of claims that do warrant this result.


case_text: There are a number of guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2): 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension 4. however, the mere absence of prejudice is not enough to justify the grant of an extension 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. (Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, adopted by the Full Court in Parker v The Queen at pars 6-7)


case_text: The issue of prejudice in the context of cases involving an application for extension of time was recently discussed by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at par 16. His Honour referred to comments of Bray CJ in Lovett v Le Gall (1975) 10 SASR 479: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' (at 485) 38 There is clearly a wealth of authority in the courts interpreting sexual harassment, and vicarious liability of employers for conduct of employees breaching the SD Act . A recent case where relevant issues were discussed is Ingram-Nader . 39 It is in my view at least arguable as claimed by the applicant that the conduct of the first respondent towards him as described in the decision of Jarrett FM and outlined earlier in this judgment, did amount to sexual harassment in the sense of being unwelcome conduct of a sexual nature in relation to the applicant. In this case, I note in particular the invitations of the first respondent, the nature of those invitations, the persistence of the first respondent, and the correspondence from the first respondent to the applicant. 40 Determination of whether the first respondent had sexually harassed the applicant would have clear implications for the applicant's claim against the second respondent. 41 The applicant stated in his submissions before me that he had never intended to allege that he had been sexually harassed by employees of the second respondent, other than the first respondent. However if the actions of the first respondent did constitute sexual harassment, then two issues arise regarding the second respondent's vicarious liability for breaches of Pt II Div 3 SD Act about which submissions have been put to me. 42 First, the applicant alleges that the first respondent was an employee of the second respondent at relevant times and that the second respondent was therefore vicariously liable for her actions. In its outline of submissions in this matter before me, the second respondent stated that there did not appear to be any evidence that the first respondent was an employee of the University at the relevant time. This is clearly a key issue, to be determined in a substantive hearing of this matter. 43 Second, the applicant's submissions in relation to the failure of the second respondent to deal appropriately with his complaints arguably raise issues concerning the reasonableness of steps taken by the second respondent, which are relevant for the purposes of s 106(2) SD Act .


case_text: However, a complication which has not been addressed by the parties in this case is that the decision of Jarrett FM pursuant to r 13.10 Federal Magistrates Court Rules 2001 ('FMCR') was an interlocutory judgment. His Honour noted himself in his reasons for decision that the application brought by the second respondent was interlocutory (par 3). Further, as pointed out by the High Court of Australia in In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70 at [6] : 'For more than a century, courts, including courts of the highest authority, have consistently held that an order staying an action on the ground that it is frivolous, vexatious or an abuse of process is an interlocutory order.' 6 This principle represents the position in Australia: Luck at [8]. That decisions of Federal Magistrates pursuant to r 13.10 FMCR are interlocutory judgments is also beyond doubt, as pointed out by Lander J in Rana v University of South Australia [2004] FCA 559 at [6] - [15] .


case_title: Jess v Scott (1986) 70 ALR 185

case_text: As I have already noted, the applicant filed an application for an extension of time and a notice of appeal after the expiration of the time limits set for such appeals in the Federal Court Rules . Clearly it is important that parties observe time limits set by the Rules, however a discretion is vested in the Court by O 52 r 15(2) to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing ( Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. In considering the meaning of the words 'special reasons' in this context, the Full Court of the Federal Court in Jess v Scott (1986) 70 ALR 185 observed that the facts of a case may be such as to justify the exercise of the Court's discretion: '...wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (at 193)


case_title: Lovett v Le Gall (1975) 10 SASR 479

case_text: The issue of prejudice in the context of cases involving an application for extension of time was recently discussed by Cowdroy J in Ingram-Nader v Brinks Australia Pty Ltd [2006] FCA 624 at par 16. His Honour referred to comments of Bray CJ in Lovett v Le Gall (1975) 10 SASR 479: 'If the defendant has suffered no prejudice, as when he was well aware within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant the extension.' (at 485)


case_title: Parker v The Queen [2002] FCAFC 133

case_text: As I have already noted, the applicant filed an application for an extension of time and a notice of appeal after the expiration of the time limits set for such appeals in the Federal Court Rules . Clearly it is important that parties observe time limits set by the Rules, however a discretion is vested in the Court by O 52 r 15(2) to extend time to permit a notice of appeal to be filed in order to avoid injustice where a party has missed a prescribed deadline for filing ( Parker v The Queen [2002] FCAFC 133 at pars 10-13). The applicant must however demonstrate 'special reasons' to the Court. In considering the meaning of the words 'special reasons' in this context, the Full Court of the Federal Court in Jess v Scott (1986) 70 ALR 185 observed that the facts of a case may be such as to justify the exercise of the Court's discretion: '...wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' (at 193) 21 There are a number of guiding principles which may assist the Court in exercising its discretion under O 52 r 15(2): 1. applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an 'acceptable explanation for the delay'; it must be 'fair and equitable in the circumstances' to extend time 2. action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished 3. any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension 4. however, the mere absence of prejudice is not enough to justify the grant of an extension 5. the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted. (Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, adopted by the Full Court in Parker v The Queen at pars 6-7)