case_title: Swan Portland Cement Limited Ltd v Minister for Small Business and Customs (1991) 28 FCR 135

case_text: The test for causation of material injury was said by Lockhart J in Swan Portland Cement Ltd v Minister for Small Business and Customs (1991) 28 FCR 135 at 144 to be "essentially a practical exercise". His Honour said that its purpose is to achieve the objective of determining whether, viewed as a whole, the relevant Australian industry is suffering material injury from the dumping. 149 Moreover, the authorities referred to in the previous paragraphs establish that the determination is one of fact and degree; see eg Mullins at [20], Swan at 145. 162 These findings seem to me to reflect the practical exercise in decision making contemplated by the test stated by Lockhart J in Swan which I referred to at [147] above. Whilst different minds may have come to different views on the preliminary findings as to the relevance of non-price factors, the determination is, as I have said, one of fact for the decision-maker. In making this determination, the CEO proceeded on the basis that factors other than price were given different prominence by different councils but that tenders were to be evaluated within a narrow price band. That was a question of fact for the CEO. 163 The balance of Chapter 10 consists largely of a consideration of Schaefer's submissions, in particular customer preferences. I have set out the findings of the Report at [100] above. That passage and the conclusions which I have set out at [102] again show the necessary application of the test of causation. 164 In my opinion, this ground of review fails.


case_outcome: cited

case_text: The Court has a discretion to refuse relief under s 39B of the Judiciary Act if a more convenient and satisfactory remedy exists; see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33 ; (1949) 78 CLR 389 at 400. See also Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 at [47].


case_outcome: distinguished

case_text: Where there is no clear evidence of offer and acceptance one must look to the conduct of the parties to determine if they have agreed to incur reciprocal promissory obligations; Toyota Motor Corporation at 178 per Tadgell J. Unlike the circumstances that confronted the Court in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, the present issue cannot be resolved primarily as a matter of construction of the relevant documents.


case_outcome: applied

case_text: The fiduciary obligations of partners may vary with the terms of the partnership agreement but will include at least the duty to act in partnership matters in the utmost good faith and loyalty in the interests of the partnership; see generally Birtchnell v The Equity Trustees, Executors and Agency Company Limited [1929] HCA 24 ; (1929) 42 CLR 384 at 407-409 per Dixon J. It is not necessary for me to expand on this issue further as it seems to me that the relief sought is more appropriately to be found under the regimes set up by the Trade Practices Act and the Fair Trading Act . 74 Mr Lewarne claims that, at the three meetings described above (the Mosman, Rosebery and Alexandria meetings) and in the two documents that allegedly outlined the basis of his agreement with Momentum and Mr Scotts, Mr Scotts made various representations that were misleading or deceptive, or likely to mislead or deceive. Mr Lewarne makes his case against both Momentum Productions (under the Trade Practices Act ) and Mr Scotts himself (under the Fair Trading Act ), although of course to the extent that the representations were allegedly made by Momentum, Mr Lewarne's case is that Mr Scotts made the representations in his capacity as director of Momentum. Those representations are: 1. Mr Scotts and/or Momentum was the owner of the building adjoining the Hotel; 2. Mr Scotts and/or Momentum would, as one of the initial plans for the business after the assignment date, demolish part of the wall between the hotel and the adjoining building and extend the area of use under the liquor licence into the adjoining building; 3. Mr Scotts and/or Momentum had obtained approval from the South Sydney Council to install and operate poker machines in the adjoining building; 4. Mr Scotts and/or Momentum would, as one of the initial plans for the business after the assignment date, construct a new poker machine area and install and operate poker machines in the adjoining building; 5. Mr Scotts and/or Momentum would continue to operate the ten existing poker machines at the hotel and would, as one of the initial plans for the business after the assignment date, procure and operate 5 additional poker machines at the hotel; 6. Momentum would enter into a lease of the hotel premises for a term of 22 years; 7. Mr Lewarne could expect to receive in excess of $75,000 per year in profit share; 8. The sum of $300, 000 paid by Mr Lewarne would be applied toward the purchase of, or as working capital to, the business; 9. The first representation continued to remain accurate and that there was no doubt or dispute concerning the ownership of the adjoining building or about the ability of the second respondent to secure legal and beneficial title. 75 Mr Lewarne claims that the ninth representation was a representation by silence in that Momentum and/or Mr Scotts failed to disclose that the first representation was inaccurate or that there were any issues concerning the ownership of the adjoining building.


case_text: McHugh JA's approach has been approved in many cases; Pobjie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105, (2000) Aust Contract R 90-112; John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43 , [2002] ACL Rep 110 NSW 14; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1 at 63 and Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153. As his Honour remarked, however, it is not a licence to dispense with the well-established hallmarks of a contract. Ultimately, it is always necessary for the essential elements of a contract to be established, even if not with textbook precision.


case_text: Whether a representation was made, and if it was made, whether it constituted contravening conduct is to be assessed objectively looking at the conduct as a whole: Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60 ; (2004) 218 CLR 592 at 604. In a case such as this, where the relevant conduct was directed towards a particular person (namely, Mr Lewarne), the preferred approach is to analyse the conduct from this perspective, rather than from the perspective of a class of persons within which the complainant may fall. In Butcher at 604, the High Court held that this required an analysis of: 'the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.'


case_text: The potential for silence to be misleading is now well established. It is to be assessed "as a circumstance like any other"; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 per Black CJ. The issue is whether the relevant circumstances give rise to a reasonable expectation that some fact or other would be disclosed; Kimberley NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054 at 53,195.


case_outcome: discussed

case_text: The importance of agency and, particularly, of a mutuality of rights and obligations in the partnership relationship was emphasised in Duke Group Ltd (in liq.) v Pilmer (1999) 73 SASR 64. Although the decision of the South Australian Supreme Court was reversed by the High Court in Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165 this aspect of the decision was unaffected. The relationship between Mr Lewarne and Mr Scotts was accepted by them as involving a mutuality of rights and obligations that was consistent with them being in partnership as that relationship is defined in the Partnership Act .


case_title: Edwards v Skyways Ltd [1964] 1 WLR 349

case_text: I have no doubt that, viewed objectively, the conduct of Mr Lewarne and Mr Scotts suggests that they intended their arrangements to have legal consequences and that a contract was made at the latest when Mr Lewarne paid his $300,000 to Mr Scotts; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at 105-6. It is clear from Mr Dempsey's evidence that they intended to enter into an agreement that had been formally drawn by a solicitor. It may be that they envisaged that this could be done before they needed to commit to a binding arrangement and were prepared to consider the solicitor's advice as to how their relationship should be structured. It is equally clear in my view that this intention was overtaken by events. Mr Scotts' need for funds to meet the imminent settlement of the business purchase from Wellfox intervened. Although not legally sophisticated, both Mr Lewarne and Mr Scotts are experienced businessmen. The commercial nature of their activities, their conduct in advancing and receiving money and their active co-operation in the running of a business (discussed in more detail below) all point to them intending to enter into a binding contract; Edwards v Skyways Ltd [1964] 1 WLR 349 at 355; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177.


case_title: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95


case_outcome: considered

case_text: As mentioned the fact that the parties here made a commercial arrangement (to use a neutral term) and acted on it, strongly suggests that they made a binding contract. The commercial arrangement is not, however, sufficient per se, to establish the point; for a dramatic example see Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487. In Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171 at [492] , Allsop J, having referred to the comments of Steyn LJ in First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194 at 196 to the effect that the law should strive to protect the 'reasonable expectations of honest men', cautioned against too heavy reliance on the commercial nature of the arrangements: However, none of these expressions of principle and guidance suggests or sanctions an approach whereby the ethical or moral merits of a commercial set of circumstances is assessed and a body of obligations thereafter is imposed, implied, or sculpted to protect the reasonable expectations of the innocent party merely because it is the victim of the unworthy behaviour of the other.


case_outcome: referred to

case_title: First Energy (UK) Ltd v Hungarian International Bank Ltd [1993] 2 Lloyd's Rep 194


case_title: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Limited [2003] FCA 50 ; (2003) 128 FCR 1


case_text: The discussions between Mr Lewarne and Mr Dempsey two days after the money had been paid over indicate that Mr Lewarne, at least, had not abandoned the idea of entering into a more formal contract. Given Mr Scotts earlier participation in discussions with Mr Dempsey I think it more likely than not that this was also his position. In my view Mr Scotts and Mr Lewarne intended to be bound immediately but also intended to make a further contract which would substitute for the original contract; GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631. That substitute contract was never made and therefore the proposed terms of it are not relevant to the resolution of the present issues. 48 In the negotiations leading up to the agreement, Mr Scotts spoke both for himself and Momentum. Indeed, as I have earlier commented, Mr Scotts referred to himself and Momentum interchangeably and without apparent distinction. On balance I find the evidence supports the conclusion that Momentum, as well as Mr Scotts, was a party to this preliminary contract. It is likely that Mr Anthony Scotts was also a member of the partnership from the same date however I have only limited evidence on this point which I have not been asked to decide. In general, I do not find it necessary to distinguish between Mr Scotts' conduct when he was acting for Momentum and when he was acting for himself and shall not do so unless there is a particular need.


case_text: Similarly, Mr Scotts' claim that by June 2004 the problems with the roof structure had affected the hotel trade to such an extent that they took priority over any expansion plans is also not to the point. As McHugh J noted in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 502, in the context of a discussion about damages under the Trade Practices Act : ' ... the wrong which s 52 of the Act prohibits is the making of, not the failure to honour, the false representation.' 129 Mr Lewarne admitted that the plan to go next door was 'swamped' by the problems with the building, and in particular the scaffolding which was erected to repair the building. Accepting for present purposes that when Mr Scotts made the representations he could not have foreseen this drop in trade and its effect on the working capital of the business it does not bear on whether Mr Scotts had reasonable grounds for making the representations at the time they were made. The obstacles described above were such that I am satisfied that neither Mr Scotts nor Momentum had reasonable grounds for making representations two and four and that they were therefore misleading. 130 Even though the legal obstacles described above may have prevented the plans to extend the hotel next door for the purpose of operating poker machines, it is, however, not immediately clear whether they would have been obstacles to the pursuit of the plan described in representation five (which does not expressly refer to the adjoining premises). The fifth representation relates only to the operation of poker machines and in particular to the procurement of a further five gaming machines. Mr Lewarne claimed that there was simply no room for a further five poker machines in the hotel unless the adjoining wall was knocked down and the adjoining premises used to house the poker machines. This was particularly the case because the wall enclosing the existing poker machine room (the internal wall) needed to be removed as a precursor to extending into the adjoining premises, a move which required the removal of at least four of the existing 10 poker machines from the premises. Mr Lewarne, in cross-examination said that he agreed to store the five poker machines at the premises of one of his other businesses: 'Mr Lewarne: Because we had already demolished the existing poker machine room and there was nowhere to put them and Richard informed me that the situation is that you have got to mask or prevent people at the bar or in the bar area looking in at the machines. Richard informed me of all the clocks on the walls and things like that. There was nowhere to put them so we put them at the AWN [sic] premises and then what we were going to do was once the hole was punched through the wall and the room finished, replace them. Mr Sahade: You agreed with that decision? Mr Lewarne: To place them at our factory? Well there was nowhere else. There really wasn't anywhere else to put them.' 131 Mr Lee submitted that, at the time that the representation was made it would have been clear that unless it was possible to extend the space available for poker machines into the adjoining premises it would not be able to operate the existing 10 poker machines, let alone procure and operate a further 5 poker machines. 132 Mr Scotts gave evidence that the five additional poker machines would initially be installed on the stairwell landing of the hotel premises and that once the gaming room had been created in the adjoining premises that the poker machines would be moved into it. Mr Lee, in cross-examining Mr Scotts, referred to the Magin report's reference to the cost of the additional poker machines being $20,000 - $30,000. Mr Lee suggested that, given Mr Scotts intended to lease the poker machines, this figure undermined his evidence that he intended to sit the extra poker machines on the stairwell, since there was no capital expenditure associated with sitting them on the stairwell. Accordingly, Mr Lee suggested that the Magin report anticipated that the additional poker machines would be installed and operated from the gaming room next door. While it is clear that the Magin report assumed that the new poker machines would be placed in the adjoining building it does nor follow from this assumption that the adjoining building was the only place that these poker machines could have been stored. 155 Accordingly, Mr Lewarne will be limited to damages for losses he incurred that, as a matter of common sense and experience, would not have been incurred but for Mr Scotts' misleading or deceptive representations. See also Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 508 per Hayne J and 496 per McHugh J. In Wardley at 525, the High Court indicated that reliance upon a misleading representation is a sufficient causal link: Here we are concerned with contraventions of s 52(1) in the form of misleading conduct constituted by misrepresentations. In this situation, as at common law, acts done by the representee in reliance upon the misrepresentation constitute a sufficient connexion to satisfy the concept of causation. And, if those acts result in economic loss...that economic loss will ordinarily be recoverable under s 82(1)... 156 There is no doubt in my mind that Mr Lewarne was careless of his own interests in relying on Mr Scotts. Indeed, in cross-examination of Mr Lewarne it seems that, at least in part, the respondents were attempting to defend themselves on this basis. Carelessness of the representee, however, is not a basis for excluding relief under the Trade Practices Act or the Fair Trading Act , nor is it necessary for the misleading conduct to be the sole cause of the loss, as the comments of Gleeson CJ in Henville v Walker [2001] HCA 52 ; (2001) 206 CLR 459 at 468-9 make clear: It will commonly be the case that a person who is induced by a misleading or deceptive representation to undertake a course of action will have acted carelessly, or will have been otherwise at fault, in responding to the inducement. The purpose of the legislation is not restricted to the protection of the careful or the astute. Negligence on the part of the victim of a contravention is not a bar to an action under s 82 unless the conduct of the victim is such as to destroy the causal connection between contravention and loss or damage. ... For there to be the necessary causal relationship between a contravention of s 52 , and loss or damage, so as to satisfy the requirements of s 82(1) , it is not essential that the contravention be the sole cause of the loss or damage. 157 See also the similar view expressed at 505 by McHugh J, with whom Gummow and Hayne JJ agreed. 158 Mr Lewarne repeatedly said that each and every one of the representations was influential in his decision to invest money in the partnership. This claim of reliance was not seriously challenged and I am satisfied that, to a greater or less extent, the representations that were made were factors in Mr Lewarne's decision to invest his money in the East Village Hotel business. I have discussed the question of reliance in relation to the first and ninth representations above at [99]-[103] and [106] respectively.


case_text: The fact that Mr Lewarne and Mr Scotts did not set out their agreement in writing and that it is not susceptible to a textbook analysis of offer and acceptance does not preclude there being a contract. In this regard the comments and cautions of McHugh JA (while a member of the New South Wales Court of Appeal) in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117 are directly applicable to the present circumstances: It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of "offer", "acceptance", "consideration" and "intention to create a legal relationship" which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding a legal relationship.... A bilateral contract of this type exists independently of and indeed precedes what the parties do. Consequently, it is an error "to suppose that merely because something has been done then there is therefore some contract in existence which has thereby been executed" ... Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words ... The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the element of an express contract. ... Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances.


case_title: John R Keith Ltd v Multiplex Constructions (NSW) Pty Ltd [2002] NSWSC 43


case_title: Kimberly NZI Finance Ltd v Torero Pty Limited (1989) ATPR (Digest) 46-054


case_title: Pilmer v Duke Group Ltd [2001] HCA 31 ; (2001) 207 CLR 165


case_title: Pobijie Agencies Pty Ltd v Vinidex Tubemakers Pty Ltd [2000] NSWCA 105


case_title: Tesco Stores Ltd v Costain Constructions Ltd [2003] EWHC 1487


case_title: Ting v Blanche (1993) 118 ALR 543

case_text: Assuming that it can be established that the representations as to future matters were made, it would appear the respondents bear the burden of establishing that there were reasonable grounds for the statements to have been made; Ting v Blanche (1993) 118 ALR 543 at 552. In Australian Competition and Consumer Commission v Universal Sports Challenge Ltd [2002] FCA 1276 at [47] Emmett J suggested that the effect of the section might be more limited: That is to say, it does not ultimately reverse the onus but simply provides that the deeming takes effect unless [emphasis added] the corporation adduces some evidence to the contrary. ... If an applicant elects to adduce no evidence as to that question then the only evidence before the Court would be that adduced by the corporation. Whether that is adequate to establish that the corporation had reasonable grounds for making the representation is a matter for the Court. However once the corporation has adduced some evidence, there is no deeming arising from s 51A(2).


case_title: Toyota Motor Corporation Australia v Ken Morgan Motors Pty Ltd [1994] 2 VR 106

case_text: I have no doubt that, viewed objectively, the conduct of Mr Lewarne and Mr Scotts suggests that they intended their arrangements to have legal consequences and that a contract was made at the latest when Mr Lewarne paid his $300,000 to Mr Scotts; Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at 105-6. It is clear from Mr Dempsey's evidence that they intended to enter into an agreement that had been formally drawn by a solicitor. It may be that they envisaged that this could be done before they needed to commit to a binding arrangement and were prepared to consider the solicitor's advice as to how their relationship should be structured. It is equally clear in my view that this intention was overtaken by events. Mr Scotts' need for funds to meet the imminent settlement of the business purchase from Wellfox intervened. Although not legally sophisticated, both Mr Lewarne and Mr Scotts are experienced businessmen. The commercial nature of their activities, their conduct in advancing and receiving money and their active co-operation in the running of a business (discussed in more detail below) all point to them intending to enter into a binding contract; Edwards v Skyways Ltd [1964] 1 WLR 349 at 355; Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177. 51 In Brambles Holdings at 177, Heydon JA, (also speaking from the Court of Appeal) observed that ' limited recognition has been given to the possibility of finding that contracts exist even though it is not easy to locate an offer or acceptance' (emphasis added). His Honour also noted that the 'offer and acceptance analysis is a useful tool' and approved the comment made by Tadgell J in Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 178, that situations where this is not the case are 'likely to be rare'. 52 Nevertheless Heydon JA pointed out, at 176, that there are many circumstances where this analysis does not work well: One example is a contract for the transportation of passengers on mass public transport ... Another is the contract between competitors in a regatta, they are bound by their conduct in "entering for the race, and undertaking to be bound by [the] rules to the knowledge of each other" ... Another example concerns the exchanges of contracts to sell land, which are hard to analyse in offer and acceptance terms ... Another example concerns simultaneous manifestations of consent ... Another example concerns contracts between numerous parties, or even two parties negotiated at meetings but not assented to until each party executes counterparts. Another is where the contract is made through a single broker acting for both parties. Another is where the parties are deadlocked and they agree to submit to a solution reached by a third party. 53 Where there is no clear evidence of offer and acceptance one must look to the conduct of the parties to determine if they have agreed to incur reciprocal promissory obligations; Toyota Motor Corporation at 178 per Tadgell J. Unlike the circumstances that confronted the Court in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, the present issue cannot be resolved primarily as a matter of construction of the relevant documents.


case_text: As partners, Mr Lewarne and Mr Scotts had fiduciary obligations to each other. Even if I am wrong and there was no concluded partnership agreement, the obligations would still arise as is made clear by the comments of Mason, Brennan and Deane JJ in United Dominions Corporations Limited v Brian Proprietary Limited [1985] HCA 49 ; (1985) 157 CLR 1 at 12: A fiduciary relationship can arise and fiduciary duties can exist between parties who have not reached, and who may never reach, agreement upon the consensual terms which are to govern the arrangement between them. In particular, a fiduciary relationship with attendant fiduciary obligations may, and ordinarily will, exist between prospective partners who have embarked upon the conduct of the partnership business or venture before the precise terms of any partnership agreement have been settled. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement.


case_title: Wardle Australia Limited v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514

case_text: In Wardley Australia Limited v The State of Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 the High Court held that the word 'by' in this section requires a causal link between the loss or damage suffered and the contravention of the Act: ...the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s. 82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E & MH) Pty Ltd except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act.


case_text: The question of whether conduct is misleading or deceptive is slightly more nuanced where the representations complained about relate to future matters. McHugh JA noted in Wright v TNT Management Pty Ltd (1989) 15 NSWLR 679 at 690: 'A promise to do something in the future is to be regarded as a representation that it will be performed. It will be deemed misleading, therefore, unless the corporation proves that it had reasonable grounds for making the promise.' 80 Section 51A of the Trade Practices Act 1974 (Cth) relevantly provides: '(1) For the purposes of this Division, where a corporation makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the corporation does not have reasonable grounds for making the representation, the representation shall be taken to be misleading. (2) For the purposes of the application of subsection (1) in relation to a proceeding concerning a representation made by a corporation with respect to any future matter, the corporation shall, unless it adduces evidence to the contrary, be deemed not to have had reasonable grounds for making the representation.'


case_text: Section 253 of the Act states that 'authorise', in relation to the making of native title determination applications and dealing with matters arising in relation to such applications, has the meaning given by s 251B. Section 251B states: Authorising the making of applications For the purposes of this Act, all the persons in a native title claim group or compensation claim group authorise a person or persons to make a native title determination application or a compensation application, and to deal with matters arising in relation to it, if: (a) where there is a process of decision-making that, under the traditional laws and customs of the persons in the native title claim group or compensation claim group, must be complied with in relation to authorising things of that kind--the persons in the native title claim group or compensation claim group authorise the person or persons to make the application and to deal with the matters in accordance with that process; or (b) where there is no such process--the persons in the native title claim group or compensation claim group authorise the other person or persons to make the application and to deal with the matters in accordance with a process of decision-making agreed to and adopted, by the persons in the native title claim group or compensation claim group, in relation to authorising the making of the application and dealing with the matters, or in relation to doing things of that kind. That definition also applies to the use of "authorise" in s 66B of the Act: Daniel v Western Australia (2002) 194 ALR 278 at [14]. 7 Finally, s 253 provides that "applicant" has a meaning affected by s 61(2) of the Act. That subsection states: Applicant in case of applications authorised by claim groups (2) In the case of: (a) a native title determination application made by a person or persons authorised to make the application by a native title claim group; or (b) a compensation application made by a person or persons authorised to make the application by a compensation claim group; the following apply: (c) the person is, or the persons are jointly, the applicant ; and (d) none of the other members of the native title claim group or compensation claim group is the applicant . 8 Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster. 10 In Daniel 194 ALR 278 at 284, [17], French J outlined the conditions that must be satisfied before an order can be made under s 66B. they are: 1. There is a claimant application. 2. Each applicant for an order under s 66B is a member of the native title group. 3. The person to be replaced is no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. 4. Alternatively, the person to be replaced has exceeded the authority given to him or her by the claim group. 5. The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising under it. 11 A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant's conduct in relation to that application, and upon the putative applicant's authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster. 15 To satisfy the condition in ss 66B(1)(a)(ii), the s 66B applicants must show the extent of the authority given to Ms Foster by the claim group and point to conduct said to have exceeded that authority. There is no requirement under that subsection for a decision to be made revoking such authority: Daniel 194 ALR 278 at [15]-[16]. In that case, at [16] French J said: If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group. See also Ward v Northern Territory of Australia (2002) 196 ALR 32. 27 A decision of the native title claim group is required by ss 66B(1)(a)(i) to remove the current applicant's authority (see Daniel 194 ALR 278 at [15]). At the commencement of the hearing of the application under s 66B on 12 June 2007, the evidence said to support that that decision had been made was said to come from the affidavit of Ms Mearns. That affidavit outlined the details of a meeting of the Kamu people on 9 February 2007. The meeting did not extend to all members of the native title claim group. In particular, neither Gabriel Hazelbane nor Paddy Huddleston nor other members of the Wagiman people or the Warai people were present. At that meeting, according to Ms Mearns, it was unanimously resolved to remove Ms Foster as a named applicant from the native title determination application and that Margaret Foster and Arthur Que Noy should be named on behalf of the Kamu people as applicants. There was no evidence as to whether minutes, or any record other than what appears in Ms Mearns affidavit, of the meeting were taken. Clearly, the decision of the Kamu people in that regard is not a decision of the claim group itself. Mr Barber's affidavit provided evidence of decisions made by the Wagiman and Warai people subsequent to 12 June 2007 (the first hearing day of the motion). The evidence is that both the Wagiman people and the Warai people after 12 June 2007 decided to support the motion. 28 The Kamu people's decision was, it was submitted, made at the meeting on 9 February 2007. Ms Foster and four of her children, namely Maxine Storer, Michael Foster, Kenny Storer and Lynette Anderson did not attend. On the evidence, two of those children do not actively participate in decisions made by the Kamu group, and the other three persons including Ms Foster were notified of the meeting. There is no other evidence concerning which members of the Kamu people were notified of the meeting, nor how they were notified, nor what they were told would be considered at the meeting. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .


case_text: Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster. 29 Spender J in Mandingalbay [2004] FCA 1703 said at [41]: The absence or even dissent of various members of a native title claim group will not necessarily be fatal to a s 66B application. See for example, Ward v Northern Territory (2002) 196 ALR 32, and Wiradjuri Wellington v New South Wales Minister for Land and Water Conservation [2004] FCA 1127 , where the absence from the relevant meeting of an applicant whom the meeting resolved to remove was not fatal to the application to have her removed under s 66B of the Act. Whether the resolutions were authorised by the claim group requires consideration as to what was the appropriate decision-making process and whether it was followed. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .


case_text: Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .


case_text: Before moving to the requirements of s 66B, there are two technical matters that are necessary to address. First, the section refers to replacing "the applicant", which is defined in s 253 by reference to s 61(2) to include jointly all of the persons authorised under s 253 to make the application. Thus, the motion under s 66B should be to replace all of the named applicants, despite the fact it proposes that some of them are to retain their status (see Daniel 194 ALR 278 at [5]; Combined Mandingalbay Yidinji-Gunggandji Claim v State of Queensland [2004] FCA 1703 at [46] ). That is a practical, but not a substantive, issue where not all of the persons who are named applicants are sought to be replaced, but it is not inconsistent with recent authorities which hold that authorisation under s 251B is held by persons individually, rather than by those persons jointly as "the applicant" (see Butchulla People v Queensland [2006] FCA 1063 ; (2006) 154 FCR 233 at [45] ; Doolan v Native Title Registrar (2007) 158 FCR 56 at [60]). In this matter, the terms of the motion intended, and would practically operate, to remove only Ms Foster as a named applicant and to replace her with her daughter, Margaret Foster, another member of the Kamu people. The other named applicants would retain their status. But, the motion may be regarded alternatively as achieving that purpose by seeking to replace "the applicant" including all of the named applicants, and replacing them with a new "applicant" including the existing named applicants except for Marjorie Foster and adding Margaret Foster.


case_text: A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant's conduct in relation to that application, and upon the putative applicant's authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster. 15 To satisfy the condition in ss 66B(1)(a)(ii), the s 66B applicants must show the extent of the authority given to Ms Foster by the claim group and point to conduct said to have exceeded that authority. There is no requirement under that subsection for a decision to be made revoking such authority: Daniel 194 ALR 278 at [15]-[16]. In that case, at [16] French J said: If the original authority conferred upon an applicant for the purpose of making and dealing with matters in relation to a native title determination is subject to the continuing supervision and direction of the native title claim group, then it may be that an applicant whose authority is so limited is not authorised to act inconsistently with a resolution or direction of the claim group. In a case where an applicant does not comply with such a resolution or direction, it is reasonable to say that the applicant has exceeded the authority given to him or her by acting in contravention of the claim group decision. The criterion of excess of authority as a condition of the power under s 66B may be less onerous than the criterion of cessation of authority. It does not require a separate decision-making process in order to establish it. It is also consistent with a beneficial construction of s 66B as a facultative provision directed to maintaining the ultimate authority of the native title claim group. See also Ward v Northern Territory of Australia (2002) 196 ALR 32. 29 Spender J in Mandingalbay [2004] FCA 1703 said at [41]: The absence or even dissent of various members of a native title claim group will not necessarily be fatal to a s 66B application. See for example, Ward v Northern Territory (2002) 196 ALR 32, and Wiradjuri Wellington v New South Wales Minister for Land and Water Conservation [2004] FCA 1127 , where the absence from the relevant meeting of an applicant whom the meeting resolved to remove was not fatal to the application to have her removed under s 66B of the Act. Whether the resolutions were authorised by the claim group requires consideration as to what was the appropriate decision-making process and whether it was followed. 39 I am mindful that the status of an applicant to bring a native title determination application is of central importance: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43] . See also Ward 196 ALR 32 at [15] and [40].


case_text: A careful reading of s 66B(1) indicates that the cumulative grounds upon which the motion under s 66B may be brought, that is, one of the two alternatives in ss (1)(a)(i) or (ii) and the ground in ss (1)(b), refer to the application for the determination of native title under s 61 of the Act. They focus upon the status of the current applicant to make the application or that applicant's conduct in relation to that application, and upon the putative applicant's authorisation to make and deal with matter arising in relation to that primary application. The status of the proposed new applicant to pursue the motion under s 66B require those cumulative conditions to be satisfied, but not necessarily an explicit separate authorisation by the claim group to seek an order under s 66B. That status already exists if there is an authorisation of the claim group under s 251B to make the claimant application itself and to deal with the matters arising in relation to it: see eg Ward v Northern Territory (2002) 196 ALR 32 at 38, [15]. In Daniel 194 ALR at 296, [53] that particular issue does not appear to have been contentious or therefore to have required particular remark. Nor, in my view, did it arise in Chapman v State of Queensland (2007) 159 FCR 507 to which my attention was drawn by senior counsel for Marjorie Foster. 40 As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .


case_text: I am mindful that the status of an applicant to bring a native title determination application is of central importance: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [43] . See also Ward 196 ALR 32 at [15] and [40].


case_text: As the submissions of senior counsel for Ms Foster indicate, other decisions of this Court have held that the words 'the application' in ss 66B(1)(b) refer to both the native title determination application and the application under s 66B ( Daniel 194 ALR 278 at [53]) or to only the s 66B application ( Chapman 159 FCR [5]; Mandingalbay [2004] FCA 1703 at [40] ; Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [36] ). Any authority to make the native title determination application and authority to make the application under s 66B are clearly interdependent. The members of the claim group authorised to apply under s 66B to replace an applicant must be the proposed new applicant and they must be authorised to make the native title determination application and deal with matters arising under it. Consequently, in my view, authorisation to bring the application under s 66B must follow from the authorisation required by s 66B(1)(b). That authorisation includes separate authorisation for each member of the native title claim group who will make up "the applicant". For those persons who will not be newly appointed, but who will maintain their existing status, it would be sufficient to merely refer to their prior authorisation and the fact that it has not been revoked: Butchulla [2006] FCA 1063 ; 154 FCR 233 at [45] .


case_title: Milroy v Lord (1862) 4 De GF & J 264

case_text: seminal case dealing with the circumstances in which equity will recognise the assignment of property without consideration is Milroy v Lord (1862) 4 De GF & J 264. The test laid down by Turner LJ was in the following terms (at 274): "I take the law of this Court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. ... there is no equity in this Court to perfect an imperfect gift." The question of what constituted "everything which ... was necessary" was the subject of considerable discussion, and confusion, over many years. In Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049, each member of the High Court interpreted Milroy v Lord differently. The facts of the case, briefly stated, were as follows. Mr William Anning, a few days before his death, conveyed equal shares in his personal estate to his wife and children. This estate included a leasehold and money in bank accounts. He did so by deed of gift, and executed a will of realty, but nothing further. The transaction was alleged to have been made to avoid the payment of succession duty. The appellant, his widow, sought a determination of whether there had been an effective gift.


case_text: Anning v Anning [1907] HCA 13 ; (1907) 4 CLR 1049, each member of the High Court interpreted Milroy v Lord differently. The facts of the case, briefly stated, were as follows. Mr William Anning, a few days before his death, conveyed equal shares in his personal estate to his wife and children. This estate included a leasehold and money in bank accounts. He did so by deed of gift, and executed a will of realty, but nothing further. The transaction was alleged to have been made to avoid the payment of succession duty. The appellant, his widow, sought a determination of whether there had been an effective gift. Dixon J, with whom Rich J agreed, held that a transferee of land under the Real Property Act 1900 (NSW) obtained no estate in the land, legal or equitable, until his transfer was registered. The learned authors of Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (2002, 4 th ed) comment (at [6-120]) that Dixon J took the same view, at least as regards estates in Torrens Title land, as Isaacs J took in Anning v Anning , namely that property could be assigned at law, but the assignment of it was not complete in equity until it was complete at law. It followed, therefore, that even on the assumption that Mr Sellar had done everything which he alone could do to perfect the gift, the remainder interest did not, in equity, vest in the housekeeper. However, Dixon J went on to say (at 599-600): "But, under the system of the Real Property Act , a transferee may be in a position by registering an instrument to obtain a legal estate, although prior to registration neither the legal nor any equitable estate was vested in him. If that system allows a volunteer to acquire an indefeasible right to the registration of an instrument in his favour, then, although it would remain true that before registration he had neither a legal nor an equitable estate in the land, yet he would be entitled to a right of a new description arising under the statute, and by its exercise he could vest the legal estate in himself. The true question in the present case appears to me to be whether the appellant acquired a right of this nature which the deceased or his executor could not intercept or defeat. There is no a priori reason why statutory provisions making title depend upon registration should not confer upon a person in whose favour a registrable instrument has been made, a right to procure its registration, notwithstanding that it is voluntary, and no reason why it should not leave the transferor powerless to countermand his instrument. Such a right would not depend upon the doctrines or remedies of a court of equity, and, pending actual registration, the transferee could not be considered entitled to an equitable interest any more than to a legal interest in the land. It might appear anomalous, but the anomaly would be no obstacle to the existence of the right." For criticism of Dixon J's analysis see Meagher, Gummow and Lehane's Equity: Doctrines and Remedies at [6-125]. See also Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365.


case_text: Brunker v Perpetual Trustee Co (Ltd) [1937] HCA 29 ; (1937) 57 CLR 555, the facts were, briefly, that Mr Sellar, the registered proprietor of a parcel of Torrens title land, executed on the day before his death a voluntary transfer to his housekeeper of an estate in the land in remainder. The land was subject to a mortgage to a bank, but as it was intended that the remainder interest should be transferred free of the mortgage, particulars of it were not entered in the memorandum of prior encumbrances. However, the mortgage was not discharged, and the bank remained at all material times, in possession of the certificate of title. After signing the transfer, Mr Sellar handed it to a law stationer who had prepared it acting, so it was held, as agent for the transferor and not the housekeeper. After Mr Sellar's death, the transfer came into the possession of the housekeeper who delivered it to her solicitors. They in turn inserted particulars of the bank's mortgage in the memorandum of prior encumbrances and lodged the transfer for registration. However, the certificate of title was not produced to the Registrar General. Meanwhile, Mr Sellar's executor had lodged a caveat against the registration of dealings affecting the land, and he initiated proceedings in which he sought, and obtained, an order declaring the transfer to be void. An appeal against that order was dismissed by the High Court.


case_text: criticism of Dixon J's analysis see Meagher, Gummow and Lehane's Equity: Doctrines and Remedies at [6-125]. See also Olsson v Dyson [1969] HCA 3 ; (1969) 120 CLR 365.


case_text: position appears to have been settled by the High Court's judgment in Corin v Patton [1990] HCA 12 ; (1990) 169 CLR 540. Mason CJ and McHugh J concluded (at 560): "Where a donor, with the intention of making a gift, delivers to the donee an instrument of transfer in registrable form with the certificate of title so as to enable him to obtain registration, an equity arises, not from the transfer itself, but from the execution and delivery of the transfer and the delivery of the certificate of title in such circumstances as will enable the donee to procure the vesting of the legal title in himself. ... The question is then whether Mrs. Patton did all that it was necessary for her to do in order to effect a transfer." Similarly, Deane J articulated the relevant test in the following terms (at 582): "It is whether the donor has done all that is necessary to place the vesting of the legal title within the control of the donee and beyond the recall or intervention of the donor . Once that stage is reached and the gift is complete and effective in equity, the equitable interest in the land vests in the donee and, that being so, the donor is bound in conscience to hold the property as trustee for the donee pending the vesting of the legal title." (emphasis added) Together, Mason CJ, McHugh and Deane JJ constituted the majority. The principles preferred by the High Court in Corin v Patton were applied by the New South Wales Court of Appeal in Costin v Costin (1997) 7 BPR 15,167. In that case, Eric Costin made arrangements to transfer an interest in property to his son Nicholas (the respondent). He executed a transfer and instructed his solicitors to provide the certificate of title to allow registration. However, before his solicitors carried out those instructions, Eric Costin changed his mind and executed a transfer to his other son, Robert (the appellant), which was then registered. The Court of Appeal resolved the dispute between the sons in favour of Robert. Brownie AJA, with whom Powell JA agreed, held (at 15,170): "... the intended gift by Eric Costin to the respondent was complete in the sense that the donor had done all that was required to be done by him alone to transfer the legal title. If his solicitors had acted as he had directed, the legal title would have passed. But the donor had not done all that was necessary to render the gift binding upon himself, or to arm or equip the donee with the means of securing registration of the transfer, or of putting the transfer beyond the donor's recall or intervention . As the events that occurred demonstrated, the donor effectively allowed the appellant rather than the respondent to become the owner at law of the donor's interest in the property. The respondent submitted, and I accept, that the donor intended to perfect his gift; but he failed to achieve that aim before changing his intention . As Corin and other cases show, more is needed. No doubt, too, it is true that if the donor's solicitors had promptly done what the donor directed them to do, the gift would have become complete, and effective, and it would have become impossible for the donor to recall the gift; but this did not happen, and the case has to be considered in the light of what did happen, rather than what might have happened." (emphasis added) The main issue to be resolved in this proceeding is whether the "gift" to the family trust in 1987 was "perfected" in accordance with the principles established by the High Court in Corin v Patton . In other words, did the bankrupt do all that was necessary to arm the donee with the capacity to register the titles in the name of Optquest Pty Ltd, the trustee of the family trust? That question can best be answered by considering the position of the mortgagees of the various properties at the time of the supposed gift. There is no evidence whatever that consents to the transfers were obtained from any of the mortgagees. The transfers executed in 1987 bore no endorsement by the mortgagees. The evidence goes no further than to establish that correspondence passed between Mr Dwyer and one mortgagee, the Bendigo Building Society, regarding what one might infer concerned the obtaining of such consent. That falls well short of establishing that any such consent was actually obtained. Without the consent of the mortgagees of each of the properties having first been obtained, the transfers could not have been registered. Accordingly, the bankrupt would not have done all that was necessary to place the vesting of the legal title within the control of Optquest Pty Ltd, and so beyond his recall or intervention. In other words, there was nothing to prevent the bankrupt from changing his mind, and electing not to proceed with the gift. In any event, the bankrupt's somewhat cavalier attitude towards prospective lenders is of little consequence in resolving this proceeding. The plain fact is that, according to the principles laid down in Corin v Patton , whatever may have been the bankrupt's intent in 1987, he did not do enough to perfect the gift of the properties to the family trust. I accept that the bankrupt set out to establish a family trust, and to transfer ownership of the properties to that trust. However, the evidence shows that mortgage consents were not obtained. There were no endorsements by the mortgagees on the transfers, as would have been required before the transfers could be registered. In addition, stamp duty was not paid, though this obligation ordinarily rests upon the transferee, rather than the transferor. The bankrupt was well aware, within a few weeks of executing the transfers, that stamp duty had not been paid. He took no steps in relation to that matter, and made no complaint to the Law Institute regarding Mr Dwyer's conduct. I infer, on the basis of the letter sent to him by Mr Dwyer on 1 March 1988, that he was aware, at least by that date, that further steps needed to be taken in relation to procuring the mortgagees' consents to the transfers. Therefore, to the extent that it may be relevant, the bankrupt cannot claim ignorance of that fact in order to overcome the difficulty that the gift was not perfected.


case_title: Costin v Costin (1997) 7 BPR 15,167

case_text: principles preferred by the High Court in Corin v Patton were applied by the New South Wales Court of Appeal in Costin v Costin (1997) 7 BPR 15,167. In that case, Eric Costin made arrangements to transfer an interest in property to his son Nicholas (the respondent). He executed a transfer and instructed his solicitors to provide the certificate of title to allow registration. However, before his solicitors carried out those instructions, Eric Costin changed his mind and executed a transfer to his other son, Robert (the appellant), which was then registered. The Court of Appeal resolved the dispute between the sons in favour of Robert. Brownie AJA, with whom Powell JA agreed, held (at 15,170): "... the intended gift by Eric Costin to the respondent was complete in the sense that the donor had done all that was required to be done by him alone to transfer the legal title. If his solicitors had acted as he had directed, the legal title would have passed. But the donor had not done all that was necessary to render the gift binding upon himself, or to arm or equip the donee with the means of securing registration of the transfer, or of putting the transfer beyond the donor's recall or intervention . As the events that occurred demonstrated, the donor effectively allowed the appellant rather than the respondent to become the owner at law of the donor's interest in the property. The respondent submitted, and I accept, that the donor intended to perfect his gift; but he failed to achieve that aim before changing his intention . As Corin and other cases show, more is needed. No doubt, too, it is true that if the donor's solicitors had promptly done what the donor directed them to do, the gift would have become complete, and effective, and it would have become impossible for the donor to recall the gift; but this did not happen, and the case has to be considered in the light of what did happen, rather than what might have happened." (emphasis added)


case_text: Recently I declined to make an order for costs against an unsuccessful party in litigation raising environmental issues: Blue Wedges Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 8 ; (2008) 165 FCR 211 at [73] . The present case, however, is not comparable. Unlike Blue Wedges , the present case did not raise any novel questions of general importance about the operation of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) or any difficult questions of construction.


case_text: The general rule is that the losing party should pay the successful party's costs. As the Full Court pointed out in Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2006) 230 ALR 411 at [6] , the fact that the unsuccessful party was raising a matter of public interest does not necessarily warrant a departure from this rule. In the same vein Marshall J said in Wilderness Society Inc v Turnbull [2007] FCA 1863 ; (2007) 98 ALD 651 at [30] : The real issue is not what is considered to be in the public interest or whether public interest considerations are a recognised exception to the usual rule, but rather, whether it can be said that there are sufficient public interest related reasons connected with or leading up to the litigation that warrant a departure from or outweigh the important consideration that a wholly successful respondent would ordinarily be awarded its costs.


case_title: Wilderness Society Inc v Turnbull [2007] FCA 1863 ; (2007) 98 ALD 651


case_text: On 16 May 2008 I gave judgment for the respondents and directed written submissions as to costs: Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 670. 4 The case against the first respondent, the Federal Minister, in my opinion had no arguable merit. It was plain that no relevant decision was made by the Federal Minister about the Preliminary Works. Neither respondent contended that the delegate's observation in the s 75 decision that the Preliminary Works did not "require approval under the EPBC Act" had any legal effect. The applicant submitted that it "won the point there was no 'approval'". But the respondents never suggested there was. It was not a case of "de facto approval": see [2008] FCA 670 at [17] [21]. 5 Reference was made in the costs submissions of the applicant to an "advertorial" in the South Gippsland Sentinel-Times of 26 March 2008 which stated: The Federal Government determined that these works in themselves would not have any significant environmental effects and subsequently decided that they would not need to be subject to the requirements of EES. 6 Quite apart from the lack of proper proof, and consideration of the context, this does not add anything. As pointed out in the substantive judgment [2008] FCA 670 at [21] , if works do not have approval under the EPBC Act and in fact have significant impact on matters of national environmental significance, persons carrying out the works face criminal sanctions. However, as will shortly be mentioned in regard to the case against the State of Victoria, there was no proof that any such impact was likely. 7 The case against the State of Victoria had even less merit. The only material adduced in support of an application to have the Court order the stopping of the Preliminary Works was a report by an unidentified individual as to the environmental effects of a wind farm some distance from the works in question. This was spectacularly irrelevant. 8 Even if the applicant qualified for the special provision for standing in ss 487 and 488 of the EPBC Act, that does not carry any particular significance on the issue of costs. The general rule that the losing party pays the winner's costs necessarily assumes that the former has standing.


case_outcome: followed

case_text: Principles which may assist the Court in exercising its discretion under O 52 r 15(2) include the following: 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 and 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. The mere absence of prejudice is not enough to justify the grant of an extension; and 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.) 7 Applying these principles to the application before me the following issues are clear.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: First, the delay in this case in filing an application for an extension of time in which to file a notice of appeal is extreme. Wilcox J in Jess v Scott (1986) 12 FCR 187 at 195 observed "It would require something very persuasive indeed to justify a grant of leave after, for example, a year...". In this case more than five years have passed since the primary judgment was delivered. 9 Second, no acceptable explanation for this delay has been given by the applicant in his written or oral submissions, or in either of his affidavits. While Dr Chalk has deposed that he has treated the applicant for approximately ten years and that the applicant suffers from chronic mental illness and while I understand that the applicant suffered a breakdown in 2003, this does not adequately explain a delay of more than five years in bringing the present application. 10 Third, no prejudice has been demonstrated by the respondent in this case. However this does not in itself justify the grant of an extension of time.


case_outcome: affirmed

case_text: As explained in the decision of Dowsett J of 2 April 2003 ( Robert Joseph Barry Garvey v Secretary, Department of Family and Community Services [2003] FCA 340) events relevant to the decision of his Honour, and the application currently before me, date back to December 1985. In summary: • In December 1985 the applicant applied for an invalid pension pursuant to the provisions of s 30 Social Security Act 1947 (Cth). That application was refused. • The applicant subsequently sought a merits review of that decision in the Administrative Appeals Tribunal ("the Tribunal"), but was unsuccessful. He was also unsuccessful in his appeal to the Full Court of the Federal Court ( Secretary, Department of Social Security v Garvey (1989) 91 ALR 245). • The applicant brought a new application before the Tribunal however the Tribunal determined that no new issues were raised in these subsequent proceedings. • The applicant appealed against this decision of the Tribunal to this Court, however Dowsett J ordered the applicant's notice of appeal be struck out on the basis that the matter had already been finally resolved by the Full Court in 1989. His Honour also ordered the applicant pay the respondent's costs ( Garvey [2003] FCA 340). • On 19 November 2003 the District Registrar in the Brisbane Registry of the Court made an order pursuant to O 62 r 45(3) Federal Court Rules in the following terms: On 2 April 2003 the Court ordered that the applicant pay the respondent's costs of the appeal including the costs of the application to strike out and the costs of 2 April 2003. On 1 October 2003 an estimate of the respondent's bill of costs was made pursuant to the provisions of Order 62 rule 46 and allowed in the sum of $5,878.88, for which sum a Certificate of Taxation was issued on 28 October 2003. THE COURT ORDERS THAT the applicant pay the sum of $5,878.88 to the respondent. 11 Fourth, and in my view critically, even were the application to be granted there are no prospects of success on appeal. In both affidavits the applicant complains of findings by the Full Court however: • This clearly demonstrates, as found by Dowsett J, that the applicant merely seeks to re-agitate issues already resolved by decision of the Full Court in 1989. Indeed this morning the applicant conceded that, in comparison with the proceedings before the Full Court, this was "the same case, but different arguments". In this respect I consider that the application before me, as was the notice of appeal before Dowsett J, is an abuse of process. • The existing Full Court decision binds the Tribunal as well as single judges of this Court. I endorse doubts expressed by Dowsett J in his primary judgment as to the competency of the Tribunal to entertain the applicant's proceedings which were subsequently the subject of an appeal before his Honour ( Garvey [2003] FCA 340 at [2] ). 12 The appropriate orders are to dismiss this application, with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 8 October 2008 The Applicant appeared in person. Solicitor for the Respondent: Mr T Loos for the Australian Government Solicitor Date of Hearing: 8 October 2008 Date of Judgment: 8 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1507.html


case_outcome: related

case_text: As explained in the decision of Dowsett J of 2 April 2003 ( Robert Joseph Barry Garvey v Secretary, Department of Family and Community Services [2003] FCA 340) events relevant to the decision of his Honour, and the application currently before me, date back to December 1985. In summary: • In December 1985 the applicant applied for an invalid pension pursuant to the provisions of s 30 Social Security Act 1947 (Cth). That application was refused. • The applicant subsequently sought a merits review of that decision in the Administrative Appeals Tribunal ("the Tribunal"), but was unsuccessful. He was also unsuccessful in his appeal to the Full Court of the Federal Court ( Secretary, Department of Social Security v Garvey (1989) 91 ALR 245). • The applicant brought a new application before the Tribunal however the Tribunal determined that no new issues were raised in these subsequent proceedings. • The applicant appealed against this decision of the Tribunal to this Court, however Dowsett J ordered the applicant's notice of appeal be struck out on the basis that the matter had already been finally resolved by the Full Court in 1989. His Honour also ordered the applicant pay the respondent's costs ( Garvey [2003] FCA 340). • On 19 November 2003 the District Registrar in the Brisbane Registry of the Court made an order pursuant to O 62 r 45(3) Federal Court Rules in the following terms: On 2 April 2003 the Court ordered that the applicant pay the respondent's costs of the appeal including the costs of the application to strike out and the costs of 2 April 2003. On 1 October 2003 an estimate of the respondent's bill of costs was made pursuant to the provisions of Order 62 rule 46 and allowed in the sum of $5,878.88, for which sum a Certificate of Taxation was issued on 28 October 2003. THE COURT ORDERS THAT the applicant pay the sum of $5,878.88 to the respondent.


case_text: The second ground of appeal refers to the weight ascribed by the Tribunal to the evidence before it. The weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259. Accordingly, in my view the second ground of appeal cannot be sustained.


case_text: The third ground of appeal, which claims that the Tribunal erred in relation to s 424A and Scarlett FM failed to take that error into account, is not particularised and is so broad in its claim as to be almost meaningless. If the appellant is referring to the information contained in the letters of October 2005, then in my view there is nothing to add to the findings of Scarlett FM in this regard discussed earlier in this judgment. However at the hearing, Mr Bevan for the Minister referred to the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 , and submitted that, on a generous reading, the appellant could be advancing an argument that the issues upon which the Tribunal based its findings on credibility were not raised or noted to him. In SZBEL [2006] HCA 63 the High Court observed that: • in cases before the Tribunal the applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (at [33]) • "the Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are 'the issues arising in relation to the decision under review'" (at [35]) • when it is said, as occurred in SZBEL [2006] HCA 63 , that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review" (at [38]) • in SZBEL [2006] HCA 63 the Tribunal did not say anything to the applicant at the hearing which would have revealed to him that it was treating certain otherwise unidentified issues as "live issues" influencing its decision ([at 43]) • accordingly, the High Court held in SZBEL [2006] HCA 63 that the Tribunal did not accord the appellant procedural fairness, and the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review ([at 44]). 19 In the case before me it appears from the recounting of events which took place at the hearing by the Tribunal which recounting was not challenged by the applicant that all issues impacting on the decision of the Tribunal with respect to the credibility of the appellant were aired at the hearing, and the subject of submissions by the applicant during the hearing. Accordingly, in my view the facts of SZBEL [2006] HCA 63 , and the reasoning of the High Court, are not relevant in this case. 20 In my view the grounds of appeal have no substance, and the appeal should be dismissed with costs. ORDER 1. The name of the first respondent be amended to read Minister for Immigration and Citizenship. 2. The appeal be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 March 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: H Bevan Solicitor for the Respondent: Sparke Helmore Date of Hearing: 26 February 2007 Date of Judgment: 22 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/403.html


case_text: Star Kitchens then filed the bankruptcy notice on 24 August 2005 and personally caused the same to be served (as stated above) upon Mr Pacer on 29 August 2005. The bankruptcy notice served on Mr Pacer referred to an amount outstanding of $30,733.51; that amount comprised the abovementioned sum of $27,354.32 recorded on the certificate of Local Court judgment as well as an amount claimed in respect of interest accrued since the date of judgment. The calculation of that interest was explained in note 2 as follows: 'Judgment was entered against Frank Pacer in the Downing Centre Local Court on 8 April 2004 for the sum of $27,354.32, plus interest to Judgment date... Interest on the Judgment debt is being claimed for the period from 9 April 2004 to 22 August 2005...' It is apparent from the Magistrate's reasons for judgment that the amount awarded on 8 April 2004 by way of quantum meruit was actually $19,820 plus costs, rather than $27,354.32. The costs order made against Mr Pacer in the Local Court proceeding initiated by Star Kitchens had not been assessed as at the time of filing the notice, and therefore the costs the subject of that order must have formed no part of the $27,354.32 judgment debt. In that regard it seems likely that the figure of $27,354.32 recorded in the certificate of judgment, which was of course issued on 16 August 2005, incorporated the interest outstanding on the $19,820 judgment, calculated from 12 May 2000 to 16 August 2005, as ordered by the Magistrate. In those circumstances the bankruptcy notice would seem to have overstated the amount outstanding, insofar as it purported to levy interest upon the difference between $27,354.32 and $19,820 during the period from 8 April 2004 to 16 August 2005. That is not however fatal to the notice: see s 41(5) of the Act and Adams v Lambert [2006] HCA 10 (Full High Court 4 April 2006). 9 Before addressing the submissions made by the parties in respect of the application to set aside the judgment, it is appropriate to describe in more detail Mr Pacer's subsequent applications in the Local Court. On 12 August 2005, following upon the Supreme Court's dismissal of his appeal from the Local Court judgment, Mr Pacer filed an amended statement of liquidated claim in proceedings no. 12463 of 2004, which he had commenced in the Downing Centre Local Court against Star Kitchens on 12 November 2004 as I have earlier recorded. Also on 12 August 2005, Mr Pacer filed a notice of motion for a stay of the original Local Court judgment until the determination of those new proceedings. On 18 August 2005, Star Kitchens filed a notice of motion seeking to have Mr Pacer's statement of claim struck out, pursuant either to Part 13 rule 4 of the Uniform Civil Procedure Rules , as being frivolous or vexatious or an abuse of the process of the Court, or pursuant to Part 14 rule 28 as an abuse of process of the Court. Star Kitchen's notice of motion of 18 August 2005 sought in the alternative an order for security for costs and a stay until such security was provided. 10 On 10 October 2005 a Magistrate dismissed Star Kitchen's application for summary dismissal. The Magistrate ordered that a stay of the original Local Court judgment should be granted, subject to Mr Pacer paying the abovementioned amount of $27,354.32 into Court as well as an amount necessary to cover the assessed costs of the original Local Court proceedings which had been successfully prosecuted by Star Kitchens, and also the costs of the proceedings in the Supreme Court. The costs of the original Local Court proceedings were assessed and recorded as $17,490.89 in a certificate of judgment dated 14 October 2005. On the same day a certificate of judgment also issued out of the Local Court which recorded Star Kitchen's assessed costs of the Supreme Court proceedings as $9,168.36.


case_text: 12 January 2009, I delivered a judgment which determined an application for urgent interlocutory injunctive relief which had been made by the applicant on 23 December 2008: Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 ( the principal judgment ). I declined to grant all of the interlocutory relief claimed by the applicant. In particular, I declined to grant relief based upon the applicant's registered trade mark, the tort of passing off and s 52 of the Trade Practices Act 1974 (Cth) ( the TPA ) insofar as this latter cause of action related to the alleged similarities between the applicant's plastic moulded chair and the respondent's plastic moulded chair. Prior to the interlocutory hearing before me, the respondent had agreed to give an undertaking to the Court on an interlocutory basis dealing with certain alleged misrepresentations said to have been made by it. That undertaking was noted at the time I delivered the principal judgment. At the same time, I granted an interlocutory injunction restraining the respondent from making certain other representations.


case_text: principle was also explained in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 , (1992) 9 ACSR 309 at 437D 442D. A more recent exposition of the relevant principles can be found in McGovern v Ku-ring-Gai Council [2008] NSWCA 209 ; (2008) 251 ALR 558 , (2008) 161 LGERA 170 at [14] [24] (251 ALR at pp 561 562) and at [71] [83] (251 ALR at pp 569 573).