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2 In the first proceeding, that initiated by Rawley Pty Ltd as trustee for the Tiltform Unit Trust and by Connoisseur Holdings Pty Ltd as a beneficiary of that trust, claims are made (i) against the first respondent, Geoffrey Bell, for negligent misrepresentation; (ii) against Bell and the second respondent, Robert Sladojevic, for declaratory relief and damages in respect of their being concerned in, or aiding and abetting of, contraventions of ss 52 and 59 (2) of the Trade Practices Act 1974 (Cth) ("the TP Act ") and the equivalent provisions of the Fair Trading Acts of South Australia and Western Australia; (iii) as a result of a late amendment, against Bell and Sladojevic for declaratory relief and damages/compensation under s 1325 of the Corporations Law in respect of contraventions of s 995 of the Law; and (iv) against Bell and Sladojevic, for compensation for breach of fiduciary duty as alleged promoters of Tiltform Australia. No claim for relief is made against the company, Tiltform Licensing Pty Ltd, whom it is alleged contravened the above statutory provisions. The misleading or deceptive conduct claims made against Bell and Sladojevic relate nonetheless to conduct attributable to Tiltform Licensing. 3 In the second proceeding Amin Chehade makes like claims against Bell and Sladojevic although the conduct relied upon to found these claims differs significantly from that in issue in the Rawley matter. Nonetheless as the two proceedings share much in their factual substratum, it has been considered appropriate that they be dealt with together and it was ordered that the evidence in one, insofar as it was relevant and admissible, would be evidence in the other. 4 In both the Rawley and Chehade matters there are, additionally, cross-claims by Bell against CGU Insurance Ltd challenging CGU's cancellation of his professional indemnity insurance policy. He seeks indemnification etc in respect of any liability to Rawley or Chehade in the present matters. The cross-claims will be considered in the last part of these reasons. 5 In both matters the conduct of which complaint is made occurred over roughly a three month period in 2000. Only one set of the representations impugned --- those of Sladojevic of 7 August 2000 --- is evidenced in a document. The rest were allegedly oral. Their having been made is disputed. Issues of credibility, of alleged reconstruction and of accuracy of recall beset this matter. As will be seen, I have rejected oral evidence of all of the principal witnesses in some degree. 6 In the event I have concluded that both applications and Bell's cross-claims should be dismissed. 7 There is a bewildering array of corporate and other actors who have participated in the events leading to these proceedings. To assist understanding I have appended two schedules to these reasons. The first lists the various corporations mentioned in these reasons. Many have the word "Tiltform" in their name. The purpose of the list is to help in differentiating them. The second list is of the various natural persons to whom I will refer in these reasons. It indicates the respective positions of each person and his or her relationship to the companies mentioned in Schedule 1. 8 For ease in exposition I will deal with the general background and setting to the claims made in both matters in my consideration of the Rawley claims. The matters distinct to the Chehade claims will be deferred to my separate consideration of those claims. 9 I would add that the ready resolution of these matters was complicated by the unexpected duration of the hearing --- the taking of evidence occupied 21 days --- by Bell representing himself throughout, by Sladojevic changing his legal representatives when the trial had been adjourned after 11 days of hearing, and by the colourable character or uncertain provenance of some parts of the documentary evidence. AR Tiltform Pty Ltd ("Tiltform") was formed in 1998 to hold the intellectual property rights to the technology for which a patent application had been lodged. Between 1997 and 1999 Sladojevic and Vinet conducted the businesses of manufacturing formwork and concrete panels and of hiring out the formwork through a company, A R Tiltwall Services Pty Ltd. They were each directors and 50 per cent shareholders in both of the above companies. In March 1999 the manufacturing business was sold to Dino Pietrobon who had formed a company called Tiltwall Services Pty Ltd. In August 1999 Tiltform Licensing Pty Ltd ("Tiltform Licensing") was incorporated for the purpose of conducting the hire business as trustee for a unit trust the beneficiaries of which were investment companies of Sladojevic and Vinet. Vinet and Sladojevic were directors and, indirectly, each 50 per cent shareholders in A R Tiltwall Services, Tiltform and Tiltform Licensing. Save for retaining a 25 per cent interest in Tiltform, Vinet resigned his positions and interests in these companies in September 1999 in circumstances to which passing reference will later be made. Sladojevic then held a 100 per cent interest in Tiltform Licensing. Prior to Vinet's resignation it was decided to expand Tiltform Licensing's hiring business and to market it throughout Australia. On the advice of Bell, who had previously been retained by Sladojevic and AR Tiltwall Services, it was decided to implement the expansion by licensing others to hire out the formwork system. So the process began of attracting licensees which resulted in these proceedings. He had previously been a partner in an established firm. As at mid-1999, Bell Partners provided both accounting and business consulting services. Sladojevic retained Bell as his accountant and business adviser in early 1998. He was later engaged to provide services for Tiltwall Services and Tiltform and he incorporated Tiltform Licensing. In time Bell Partners became the accountants and advisers for the Tiltform group of companies which became the business' major client. Bell engaged Amin Chehade as an accountant in 1997, Chehade providing the accountancy services and Bell the business advisory services of Bell Partners. In April/May 2000, Bell Partners moved to premises at Greenhill Road, Wayville. On the same relatively open-planned floor of the building were the offices of the Tiltform group and, later, Tiltform Australia's office. Bell regarded this arrangement with Sladojevic under which they worked closely together and shared Bell Partners facilities as being mutually beneficial because that was "what was required of my involvement with the Tiltform Group". In late July 2000 he offered to sell his practice to Chehade for, according to Bell, $200,000 and, later, for $50,000 with vendor finance. Chehade declined both offers. By August 2000 Bell had joined Tiltform Licensing as a director. He had earlier (September 1999) taken, indirectly, a 5 per cent share interest in the company. Chehade being unprepared to buy Bell's practice, Bell sold Bell Partners in late 2000. He fell out with Sladojevic in early 2001 and resigned all his positions in the Tiltform group around this time. Though involved in some number of the meetings, etc in dispute in this proceedings, he is one of the few apparently disinterested principal actors in that he is not a party to these proceedings. The following skeletal outline of the circumstances giving rise to the formation of Tiltform Australia is not intended to represent findings. My purpose here is simply to provide background to the matters that are in issue. Benson controlled a company, Burnstop Pty Ltd, that supplied specialised building products to the building industry. His wife, Rita, had had previous business contact with Sladojevic and became aware that he was considering selling the hiring business. At the end of 1999 or early 2000 they met with Sladojevic at which meeting the Tiltform system was explained to them as was his proposal to licence it in each State. Benson apparently evinced an interest in the South Australian licence but was informed that there was an in-principle agreement with a Jim Brennan to take that licence and one other. He was also told that the WA licence was not available. Nonetheless he was supplied with "roll-out" booklets for each State except Western Australia containing details of the costs of the respective licence and forecasts of potential income. Benson then sought advice from an Andrew Lloyd, a financial adviser, who, having been shown the booklets, suggested that Benson proceed not only with the South Australia licence but should seek to obtain the licence for the whole country. Benson believed he did not have the capital to go into the purchase of the South Australian licence and needed somebody to assist him in raising funds to do so. 13 In the course of discussions involving Bell, Sladojevic, Benson and Lloyd in January (though all were not present at each discussion), the proposal for a licence for all of Australia (excluding Western Australia) was considered. After obtaining legal advice Jim Brennan was offered, and acquiesced in taking, the licence for New Zealand. By early February 2000 Bell was supplying Benson with draft documents for the national licence excluding Western Australia. On 10 February Bell indicated to Benson the details of the basis of any licensing arrangement with Benson. These included a payment of $890,000 for the Territories on offer (these included $90,000 for SA/NT and $300,000 for Victoria/Tasmania), $500,000 to be paid upfront and $390,000 on terms to be agreed, $50,000 would be required as a deposit. Benson subsequently indicated that he and Lloyd would proceed first with the SA/NT licence before the eastern States licences and offered $50,000 deposit for that licence. Bell continued to hold out for the upfront payment of $500,000. 14 The expected $50,000 deposit had not been paid by 24 February leading to Bell's complaints about delay. By 2 March Benson and Lloyd had made advances to Bell of $50,000 of which Benson provided a total of $10,000. He had no recollection of making any other payments on his own behalf. Apparently on 13 March 2000 Benson took over Tiltform Licensing's hire business. At that time he had not paid the SA/NT licence fee, nor had he paid a further $60,000 for the purchase of the SA formwork. Throughout April and May Bell and Sladojevic remained concerned that the moneys promised by Benson and Lloyd were not forthcoming. Bell complained of this on 26 April 2000. The response was a cheque drawn on the Lloyd Family Trust for $250,000 which was dishonoured on 7 June 2000. It was made plain to Benson that he needed a new investor if he was going to secure the licences. He ceased dealing with Lloyd and introduced Dr Ben Abraham as an investor. Ben Abrahams paid Bell $250,000 in early June. To backtrack, Tiltform Australia was incorporated on 1 May 2000. Benson was then its sole shareholder and director. Its licence agreement for South Australia and the Northern Territory was executed on 6 June 2000. By this time the first of the meetings giving rise to the Rawley proceedings --- that of 2 June 2000 --- had occurred. By at least early-mid July, Tiltform Australia's offices were on the same floor of the Greenhill Road premises occupied by Bell Chehade and Tiltform Licensing. He and Sladojevic met up at a presentation of the Tiltform technology that Sladojevic gave in Perth in June 1999. Ilic then indicated that he would see if he could get together a group to acquire an exclusive licence for Western Australia: Sladojevic later told him that the upfront fee "for a period spanning the life of the patent": Affidavit, par 34; was expected to be around $100,000. Ongoing royalties would also be payable. A company, subsequently called Tiltform Concrete Systems (WA) Pty Ltd ("Tiltform WA") which was operated by Ilic, a Darren Jennings and Joe Barone executed an exclusive licence 20 March 2000. Barone, who seems to have been Ilic's father-in-law, financed the investment through a $225,000 funding arrangement with Ilic apparently designed to get the business up and running. I note in passing that in December 1999/January 2000 Ilic, who had previously worked in Sydney with Sladojevic, worked in the Adelaide offices of Tiltform Licensing to learn the conduct of the hiring operations. 16 The licensing agreement reached with Sladojevic deferred payment of the $100,000 licence fee until 1 July 2000. Bell's evidence was that the reason for the deferral was because the company needed to purchase formwork and Barone's money was put into that. This was seen as "their most functional way of going". A product launch which Sladojevic attended was held in Perth. After that demonstration a director of Icon Group Management Pty Ltd ("the Icon Group"), Guiseppe ("Joe") Murabito, met Sladojevic. While impressed with the technology, he said he expressed no interest in it at that stage. He did tell another of the Icon directors who also was there --- Renato Palmiero --- that he thought Icon Group should approach Tiltform WA and seek some form of "preferred contractor" status. Murabito recommended the system as well to Gavin Lee, the company's third director and to its accountant, Greg Parker. Shortly after Icon Group commenced hiring from Tiltform WA, discussions were initiated between Ilic and Icon Group regarding investing in Ilic's company. There is some debate over whether Ilic approached Murabito and Icon Group at Sladojevic's suggestion, or whether Icon Group approached Ilic. Be this as it may, it is clear that Icon Group decided it would be more economical for it to acquire the WA licence than to hire formwork from Tiltform WA. It was also known that Barone wished to withdraw his $225,000 from the business and that Tiltform WA needed working capital. Murabito raised the prospect of investing in Tiltform WA at a directors meeting on 26 May 2000 at which an investment proposal which probably emanated from Ilic was discussed. There had been some exchange of correspondence prior to that meeting. The proposal, according to Parker, was for Icon Group to take a 72 per cent equity interest in Tiltform WA for $505,000 plus a further $70,000 to pay out a director's loan. Parker was asked by the Icon directors if he wished to review this investment opportunity personally, not as their accountant, as they were interested in looking at it as investors --- Parker agreed to this. A week later he and Murabito were at their first meeting with Sladojevic and Bell in Adelaide. I would note additionally that he was involved in most of the events giving rise to the Rawley proceedings. He was an architect and builder and at or around the relevant times he was studying for, and obtained, an MBA. For a period shortly after the investment was made in Tiltform Australia on 11 August, he worked in Adelaide as General Manager of Tiltform Australia. He was appointed a director of Tiltform Australia on 4 September 2000 although that appointment was never formally registered. It is convenient to deal with these matters here as they provide background and context, for an understanding of the principal events described later in these reasons. It was, to an extent at least, the subject of one or more patent applications as is evidenced in the Schedule to the SA/NT Licence Agreement. It seems that at least one patent was later granted in respect of it. It is also clear that the technology itself became the subject of litigation(s) between a company or companies associated with Gino Pietrobon (who purchased the manufacturing business of A R Tiltwall Services) and Tiltform Licensing. An aspect of these litigations was an alleged patent breach by a Pietrobon company of Tiltform's "patent" --- a breach which was witnessed by Sladojevic on 6 August 2000. There has been some controversy as to when Sladojevic became aware of the breach, although I am satisfied that it probably was on or about the date I have given. Both Bell and Benson were made aware of this matter when in New Zealand on 7 August although Benson may well have had prior knowledge of it. By 10 August 2000 Sladojevic and Bell were meeting with patent attorneys to discuss the breaches of patent. It is unnecessary for me to determine when the relevant patent was granted (it seems not to have been before the above date) although it does seem that, by later in the year, patent litigation was on foot and was continuing up to the time Tiltform Australia went into voluntary administration. There appears to have been communications between Sladojevic and at least Benson as to the sharing of the costs of the action against the Pietrobon company. 21 A difficulty I have with the evidence is that, despite insisting during oral evidence his solicitor had "drilled into him" to distinguish between a "patent" and a "patent application", Sladojevic not only in his affidavit (see e.g. par 34) but also in documents he authored, used the term "patent" to describe both. I am not prepared to accept he was any more precise in oral communication. I will return to this. I should also add that there are documents, the provenance of the information in which can be traced back to Sladojevic, which create an entirely false impression of the patent litigation and its prospects. As I will later indicate these documents were contrivances designed to secure an advantage to Sladojevic in his subsequent dealings with Vinet in late 2000. 22 Benson's evidence is that he learned of the alleged Pietrobon breach of the patent before the Rawley Unit Trust investors made their investment in Tiltform Australia. He could not recall if he told them about it. Parker's evidence is that he did not become aware of this litigation before March 2001 and that mention of it did not find its way into board minutes of Tiltform Australia. It is clear from correspondence between Lee and Tiltform Australia's lawyers of 14 and 19 September 2000 that Lee both was aware of the breach of patent proceedings and of Tiltform Licensing's pursuit of a cost-sharing arrangement with Tiltform Australia for the litigation. These are (i) the marketing proposal booklets; (ii) confidentiality agreements; (iii) disclosure documents created in accordance with the Franchising Code of Conduct: see Trade Practices (Industry Codes Franchising) Regulations 1998 (Cth); and (iv) licensing agreements. 24 The marketing proposal booklets for the various State and Territory licences on offer had their genesis in a document prepared by Sladojevic (with assistance) at some time in late 1999. They were based on an assessment of the size of the Adelaide market and on actual trading results in Australia. These were extrapolated to determine the likely size and profitability of the markets in the other States and Territories. Copies of the booklets are in evidence. Apart from describing the virtues of the Tiltform system, each outlined the costs, the savings effected and the rental and sales rates and profitability in the Adelaide market and then went on under the heading "proposed roll out costs and returns for the [respective State] market" to provide an 8 year profit/loss projection for that State. 25 As I earlier indicated, Sladojevic provided Benson with copies of these booklets in late 1999/early 2000. In his affidavit Sladojevic stated he provided the copy relating to Western Australia to Ilic prior to Tiltform WA entering into the WA licence agreement. There is no evidence suggesting that either Ilic or Benson provided any of the Icon Group directors or Parker with such a booklet prior to their proposed investment in Tiltform WA or their actual investment in Tiltform Australia. 26 The confidentiality agreements were of a form routinely used in business negotiations. They were required to be signed by Murabito and Parker prior to their first meeting with Sladojevic and Bell in Adelaide on 2 June of 2000. 27 The disclosure document (prescribed by the TP Act s 51AE) is in evidence and was given to Benson and Lloyd for the proposed Australian licences (other than Western Australia). Of present relevance, the document outlines estimates of projected establishment costs and/or costs items to start up the hiring business in each State and Territory; the initial licence fee for each licence; and the ongoing licence fee of 7 per cent. Any previously presented financial figures or projections of the licensor must (other than for actual trading figures) not be relied upon by the licensee (See Special Condition 14.1(a)) and have been put forward as a guideline only for the licensee's own assessment with its accounting and other professional advisors. Earnings may vary between licences. The only actual earnings are that of the business in South Australia conducted by the licensor since February 1999, for which enquiries can be made direct with the licensor or its accountant and Item 20 hereof will provide some financial details of the same. 29 Several of the licence agreements (some signed, some not) are in evidence. They are in standard form. I will refer only to the SA/NT licence for present purposes. It contains clauses favourable to the licensor and intrusive powers to control the licensee which commonly are found in exclusive licences involving the use and exploitation of intellectual property. For present purposes I merely note the following. The licensee was obliged (i) to use a specified "Tiltform" business name and to have its corporate name regulated: cl 8.1; Sched cl 15.19; (ii) to have its advertising pre-approved: cl 8.4; (iii) to have its manager approved in writing: cl 8.7; (iv) to keep approved hiring and sales reports and to deliver these to the licensor as directed: cl 8.13; and (v) to keep approved books of accounts and records and to operate such accounting systems as the licensor prescribed and to permit the licensor and its agents to inspect etc the same when so requested: cl 8.14. A separate clause conferred a veto power on any allotment or sale by the Licensee of shares or of units in a unit trust which had the effect of transferring the effective control of the corporation or unit trust to a third party. These, for the most part, have been abandoned. I will deal separately with the few remaining non-disclosure claims relied upon: see below "Other Misleading Conduct". 32 The pleading translates the conduct of Bell and Sladojevic into claims under the TP Act in a rather circuitous and, to a degree, an unrevealing way. That conduct is said to have contravened s 52 and s 59 of the TP Act . The primary contravenor is said in the application to be Tiltform Licensing although no relief is sought in the proceeding against that company. Declarations and damages are sought against Bell and Sladojevic under s 82 of the TP Act on the basis that, for the purposes of s 75B of the TP Act , they were knowingly involved in Tiltform Licensing's contraventions. Parallel claims are made against them under the equivalent provisions of the Fair Trading Act 1987 (SA) and the Fair Trading Act 1987 (WA). Relief was sought under s 1325 of the Law. This amendment was a technical, but necessary, one. The reason I raised it with the parties is that the matter was founded on the premise that the alleged wrongs gave right to causes of action under Part V of the TP Act . Those wrongs were committed at various dates in 2000 and were related to dealings in the "securities" (i.e. shares) of Tiltform Australia. At that time s 51AF of the then TP Act stipulated that Part V did not apply to the supply of services that are financial services. Such "services" includes "securities": see Australian Securities and Investment Commission Act 1989 (Cth), s 12BA(1) ("financial services"). Section 995 of Ch 7 Pt 7.11 of the Corporations Law as it stood in 2000 prohibited a person in connection with any dealings in securities from engaging in conduct that was misleading or deceptive or was likely to mislead or deceive (i.e. the same formula in part as in s 52 of the TP Act ). "Securities" were defined in the Law to include "shares": s 92(2). Relief could be granted under s 1325 of the Corporations Law in respect of conduct constituting a contravention of Pt 7.11. Finally, s 995A of the Corporations Law provided that the provisions of State Fair Trading Acts (defined in s 9 to include those relied upon in these proceedings) did not apply to dealings in securities. If the principal claims made in the Rawley --- and for that matter the Chehade --- matter were not to be dismissed on formal jurisdictional grounds, the amendment I raised was necessary. 34 A separate negligence claim is made against Bell who it is said owed a duty of care to the applicants in making representations to them in relation to their proposed investments in, first, Tiltform WA and the Tiltform Australia; reasonable reliance on those representations is pleaded, the representations being essentially the same as the misrepresentations and other misconduct pleaded against him in the Misleading or deceptive conduct claim. Breach of the alleged duty of care arose essentially because of the same factors that rendered the representations misleading or deceptive in the Misleading or deceptive conduct claim. 35 A further claim is made against Bell and Sladojevic as promoters of Tiltform Australia. The basis of this claim appears to be that they were promoting the taking up of shares in Tiltform Australia although, as put, much is made of the allegedly fiduciary character of the licensor (Tiltform Licensing) and licensee (Tiltform Australia) relationship. I would note here that, at the beginning of the hearing I indicated my difficulty with this claim. The supplementary submissions advanced after the end of the hearing have not dispelled my difficulty. The breach of fiduciary duty asserted arises from alleged non-disclosure of matters that relate in the main to dealings between Tiltform Licensing and Benson prior to the emergence of the WA investors in June 2000 although the non-disclosures also relate to conduct in issue in, or else relevant to, the misleading or deceptive conduct claims. 36 I will as a matter of convenience deal with the misleading or deceptive conduct claims first. They provide an appropriate vehicle through which to expose most of what is in issue in each of the claims. Nonetheless, I will refer to both claims primarily because the substantial jurisprudence on what is misleading or deceptive, etc for TP Act purposes is generally applicable to s 995 (and its successor in s 1041H of the Corporations Act 2001 (Cth)): see generally Ford's Principles of Corporations Law , 22.450 (13 th ed 2007). 38 By way of statutory background I should note, first, that a corporation contravenes s 52 of the TP Act if it engages in conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive. It is not in dispute in this matter that the misleading or deceptive conduct alleged, if it occurred, was in trade or commerce. For present purposes, I need only note as well that conduct is misleading or deceptive if it induces or is capable of inducing error. Whether it has this character is a question of fact to be determined on the evidence as to the context in which it occurred and the relevant surrounding facts. So much is well established. 39 Though it has not loomed large at all in the applicants' submissions I should also note s 59(2) of the TP Act the contravention of which has been pleaded in relation to alleged misrepresentations with respect to the profitability of, and the level of working capital available to, Tiltform Australia. This, as I earlier noted, is the vehicle relied upon by the applicants to impose liability on Bell and Sladojevic under s 82 of the TP Act in respect of the contraventions alleged against Tiltform Licensing by virtue of their conduct: see Wheeler Grace & Pierucci Pty Ltd v Wright (1989) 11 ATPR 40-940. Section 75B does not require that the participant knew he or she was participating in a contravention of the Act. What, though, is required is actual knowledge of the essential elements of the contravention and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 ff. I would note that this provision applies directly to "a person" hence the lack of any need to pursue Bell or Sladojevic via accessorial liability provisions as is necessary under the TP Act . 43 Section 1325(1), insofar as presently relevant, empowers the Court to compensate a person who has suffered loss or damage because of another's conduct that was engaged in in contravention of s 995 for the loss or damage so suffered. 44 While I will deal in turn with the principal events in which misleading or deceptive conduct is alleged to have been engaged in, I preface this with observations on the principal witnesses in this matter. The need for this will become plainly apparent given the issues of credibility and reliability I have already foreshadowed. Both are quite opinionated. Their personal styles are markedly different and their personalities clashed. I am not prepared to discount their animosity in my treatment of the evidence of either of them, but of Parker in particular. I consider the view he has of Sladojevic, of his personality and of his behaviour has on occasion coloured his evidence and the subject matter of his recall. In saying this I am not suggesting his evidence was deliberately dishonest or vengeful. 46 Bell's relationship with Sladojevic is equally a matter of which account ought be taken in evaluating his actions as revealed in the evidence. He and Sladojevic clearly had a successful working relationship over a number of years to the point where Bell was prepared to forsake his professional practice and to join forces with Sladojevic in the Tiltform group. However, that relationship unravelled over a relatively short time. Bell's own evidence is that he could be persuaded and/or dominated by Sladojevic to the extent of engaging in actions which he might otherwise have refrained from doing. That he would so act was demonstrated starkly in his participation in the successful strategy of September 2000 to get Vinet to agree to sell his shares in Tiltform which required the deliberate giving of false instructions to lawyers and to making of serious misrepresentations about the viability and poor financial position of the Tiltform group of companies. Bell knew this was a sham; he was unhappy about it; but he went along with it: see below, "Sladojevic's deceptive strategies". By November 2000 he was wanting to get out; he did not like the way things were going and the way business was being done; Sladojevic "stopped listening to my advice"; he was denied access to Tiltform Licensing's books; etc. In January 2001 lawyers representing Sladojevic wrote to Bell on several occasions making serious imputations against him. The allegations were denied but this heralded the end of Bell's relationship with Sladojevic. They each executed a deed of release on 5 March 2001. It emerged in Sladojevic's cross-examination that the allegations made in the January letters were again "strategy" representations. Sladojevic conceded the instructions he gave were not true: such allegations "get made for leverage". Bell, seemingly, was unaware of this when he gave evidence in the matter. I have recounted the above, not because Bell has given evidence sharply critical of Sladojevic (which he has not) but because the nature of his relationship with Sladojevic probably provides some explanation of his actions. 47 I equally should comment on Sladojevic's relationship with Benson. This relationship needs to be considered bearing two matters in mind --- first, Sladojevic's tendency to domineer; and, secondly, his power over Tiltform Australia by virtue of the licence agreements Tiltform Licensing had with it. While Benson was, in the relevant period, within Sladojevic's power vis-à-vis investments to be made in Tiltform Australia, the evidence is that at that time their relationship was cordial. I accept that Benson readily accepted and acted upon proposals and suggestions of Sladojevic relating to securing investment in Tiltform Australia. But I do not accept, and it has not been suggested, that Sladojevic was in essence a "shadow director" of Tiltform Australia: cf Secretary of State for Trade and Industry v Deverall [2001] Ch 340 at 354; Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. The evidence is that Benson had and relied upon his own financial advisers in relation to the formation and their operation of Tiltform Australia and that he was experienced in the conduct of his own businesses. I do not accept that he was simply Sladojevic's cipher despite Parker's occasional attempts to paint him as such. 48 As I have foreshadowed issues of reliability and credibility have loomed large in this matter. The critical events occurred five years before the hearing in this matter and occurred within a very short period (i.e. 2 June --- 7 August 2000). None of the misrepresentations about which complaint is made (save that of 7 August) is evidenced, or even alluded to, in any way in contemporary documents. The three critical meetings (i.e. of 2 June, 26 June and 17 July) at which misrepresentations are alleged to have been made, are the subject of totally divergent and inconsistent accounts. 49 Because of the views at which I have arrived as to the reliability of the various witnesses, it is appropriate that I provide some explanation at the outset of why I regard them individually as I do. 50 Parker has obviously invested considerable time and effort in attempting to recall the events leading up to and the reasons for, the WA investment. There is nothing in his own contemporary notes to support his claims that the oral misrepresentations were made. I consider that significant parts of his evidence, particularly when describing what he says were his own opinions, judgments, understandings and motivations at the time, are unreliable. I am satisfied that those opinions etc, often represent after the event rationalisations and explanations for his own actions and they often ascribe significance to matters which those matters did not have to him at the time. 51 I do not consider Parker to have been untruthful. Rather he has in certain critical respects convinced himself that things were said or done which I have not found to be made out on the evidence before me. I accept in this that he was influenced by his motivation to do his best for the investors he had brought into the WA group and for whose loss he appears to feel a responsibility. This is understandable given the manner in which that loss was incurred. 52 Lee . This witness' affidavit contained a significant number of annexures with the contents of which he had well familiarised himself. When taken away from these documents his evidence was far less convincing. I am satisfied that there was a significant degree of reconstruction in his evidence. What is clear is that he was unwilling to accept responsibility for financial decisions, the raising of financial concerns, etc. These were, he said, Parker's responsibility. I am by no means satisfied that he was so blindly trusting as he sought to convey. 53 Murabito . Such was Murabito's lack of recall of events, that I consider his recall of a few strategically significant matters (e.g. Bell's "$2 million" assurance on 26 June 2000) should be treated with circumspection. In saying this, I am quite conscious of how fallible are memories and of the remoteness of the events about which Murabito was being questioned in close detail. 54 Benson . Given he was not a party to these proceedings, but was an actor in some of the events that are in issue, it might be expected that Benson would provide helpful, independent evidence of those events and their context. I have not found that to be the case. I do not regard his evidence as either full or frank. As his cross-examination progressed, he took refuge in his inability to recall matters. I am satisfied that this often was a contrived response. Even the applicants in submissions conceded that Benson sometimes gave the appearance of making no effort to recollect events. While it is the case that Benson is a disinterested party in the present proceedings, he was by no means a disinterested actor in the life and death of Tiltform Australia. I consider he was quite mindful of this and the implications of it in giving his evidence. 55 Bell . Bell sought to project himself as an ethical, detached professional adviser. Throughout this proceeding he represented himself. His evidence-in-chief was given in narrative form. From his business diaries and time sheets he could give what is probably a reliable account of objective facts such as where he was, who was there, etc. The diaries, though, yielded little by way of information as to what was discussed at meetings etc. Bell's memory for the most part does not stretch far beyond his diaries and time sheets. He conveyed the impression of wishing to consign from memory a period in which he made judgments and took actions which he has come to regret. His oral evidence did not directly confront what had been put against him in the Rawley and the Chehade proceedings. However, he denied volunteering the $2 million representation. For a variety of reasons I do not regard Bell's evidence as reliable. He was both dogmatic and counter-suggestive in cross-examination to the point on occasion of making assertions which either contradicted his own documents or else seemed contrived, adversarial responses. I am satisfied he has limited recall of some of the critical events in this matter despite his confident assertions concerning them. I equally am satisfied that he has reconstructed and rationalised his evidence in ways that best serve the interests of his case. I consider this to be particularly so concerning the meeting of 2 June 2000. I have disbelieved the evidence he gave concerning his actions during the day of, and at the meeting of, 26 June. His answers on occasion were designedly obfuscatory, as for example when he denied that the 26 June meeting was a meeting which later led him to distinguish between "formal" and "informal" meetings. He equally, but unconvincingly, created the impression of indifference to, or lack of interest in, matters with which he obviously had a real concern or interest. This was particularly so in relation to the financial affairs of Tiltform Australia and to the payment of licence fees. Though he claimed for himself roles and responsibilities in Tiltform Licensing he often enough disclaimed actual responsibility in matters which seemingly fell within his claimed sphere by asserting he was acting on Sladojevic's instructions or that the matter had been taken over by Sladojevic. His claimed level of participation in the 2000 strategy to buy out Vinet typified this: see below. 56 Sladojevic . It is difficult to accept major parts of Sladojevic's evidence. His affidavit evidence, even after amendment, was conceded to be reconstructed from documents and was in important details inconsistent with his oral evidence. The extent of this reconstruction is indeterminate. As a witness he was argumentative, evasive and obviously self serving in the gratuitous commentary in which he indulged. When one couples this with the deviousness and ruthless self interest he betrayed on at least four occasions in engaging in deceptive "strategies": see below; reason for reserve about his evidence is clear. He has engaged in opportunistic behaviour and has resorted to falsehood. I am satisfied his evidence on any subject not corroborated by independent documentary evidence or a reliable third party ought be regarded with caution. One such occasion involved the making of false accusations against Bell via lawyers' letters of January 2001 during the breakdown of their business relationship. Another, not conceded by Sladojevic related to the letter of 7 August 2000 he wrote nominally to Benson, but intending that it be sent to the WA investors. Later in these reasons I find that letter was, and was intended to be, misleading. The two other occasions in which he resorted to deception concerned separate dealings he had with Vinet in 1999 and in 2000. Given my concern with Sladojevic's credibility it is appropriate that I refer to these two occasions. 58 First the 1999 dealing with Vinet. I have earlier noted that in September 1999 Vinet disposed of his interests in Tiltform and Tiltform Services (save for a 25 per cent interest in Tiltform) and resigned his directorship of both companies. The following is only a skeletal account of how Sladojevic sought to procure these actions. 59 Having concluded by May of 1999 that it was impossible for he and Vinet to continue working together, Sladojevic met with Bell and his solicitor, Richard Solomon, for advice on how to resolve the matter. He then evolved a strategy to get Vinet "to come to the table". Wholly misleading accounts of the true financial position of Tiltform Licensing had been prepared such that it appeared to have considerable debts when it appears in fact to have been trading profitably. Those accounts, though were used by Sladojevic as part of a proposal put by him to get Vinet to sell his shareholding. Sladojevic equally communicated (falsely) to Vinet that his father who was in fact moving from Sydney to Adelaide to live with him because of ill health, had sold his house to relieve the cash flow problems of the Tiltform companies. 60 The proposals put to Vinet went through several iterations as the financial position of the companies were said to be "gradually getting worse". In the result an agreement was struck under which Vinet sold most of his shareholdings and resigned his directorships. Sladojevic's evidence is that he acted entirely of his own accord in this matter and that Bell was not involved in it. 61 The second Vinet strategy (in 2000) focussed on Vinet' s 25 per cent shareholding in Tiltform. That company was the owner of the Tiltform intellectual properties. It was proposed to have another Tiltform company, Tiltform Technologies Ltd, listed on the New Zealand stock exchange and central to this proposal was that that company owned all of the shares in Tiltform. Sladojevic, Bell and several other persons evolved a strategy to induce Vinet to sell. This strategy involved (inter alia) the knowingly false misrepresentations that (a) the Tiltform companies were unviable and in a poor financial position; (b) Sladojevic's father was pressing for repayment of his loan; (c) Bell had threatened to wind up the companies because he was owed "a huge amount of money for fees and had to be issued shares in Tiltform Licensing in lieu; (d) Bell served a statutory demand on one of the companies in October 2000 (Bell in fact had such a document prepared) and that he refused to provide financial support to Tiltform; (e) the companies did not have the funds to protect the patent from Pietrobon's breach of them and that four cases were on foot; and (f) patent attorneys had advised that Pietrobon's copy of Tiltform's system did not violate the patent, and this significantly decreased the value of the intellectual property. As a result of this strategy Vinet agreed to transfer his shares in Tiltform to Sladojevic's father for no consideration provided he was given various warranties. In the event the listing in New Zealand did not proceed and the Vinet issue was "left hanging". I should add that, while Sladojevic's evidence is that Bell was complicit in this strategy, Bell sought quite self- servingly to distance himself from significant involvement in the strategy. The evidence suggests otherwise as witness his instructions to solicitors in October 2000 to prepare a letter of demand in respect of previously written off debts at Sladojevic's suggestion, so enabling Sladojevic to point to it in relation to the supposed financial difficulties of Tiltform. I am satisfied that Bell was a knowing participant in this strategy. 62 One consequence of the strategies in relation to Vinet is that documents created for the purposes of them have added very significantly to misinformation relied upon in the conduct of this proceeding. Amendments were made to the pleadings and cross-examination conducted on the premise that the information conveyed in such documents was correct. This resulted both in time wastage and quite a deal of confusion and contradiction for which Sladojevic principally, but also Bell in some degree, bear responsibility. It is unfortunate that in the case management of this proceeding a direction was given that evidence-in-chief would be by way of affidavit. The giving of evidence in this form in this matter has added to the difficulty in determining on balance what occurred at, and what were the consequences that flowed from, meetings at which misrepresentations were allegedly made. Having heard the principal witnesses in cross-examination, I have considerable reserve about aspects of the affidavits of all of them on the scores of reconstruction and of self-serving rationalisation. 1. After Parker had agreed to review the investment opportunity in Tiltform WA which had been discussed with the Icon Group directors on 26 May 2000, Parker (with Lee's assistance), prepared forecasts of the Cash Flow, Profit and Loss and Balance Sheet of Tiltform WA for the 2001-2003 financial years. In doing this he relied upon a one page document prepared by Ilic which described the outlays, income and investment in the business in the period of its operation. 65 It is Parker's evidence, which I accept, that at this time he did not have, or have access to, the WA licence agreement, the disclosure document or the WA market proposal booklet. While he had spoken to Ilic before 2 June, he did not look to him for significant assistance because, as he said of Ilic, "as far as business acumen is concerned ... he lacks the certain qualities that one is required to have when talking about these particular numbers". He also said that Sladojevic expressed a like view of Ilic at the 2 June meeting. 66 Parker saw his function at the time as being that of conducting a "due diligence", and that in consequence the primary purpose of his visit to Adelaide to meet with Bell and Sladojevic on 2 June was to have the reasonableness of his financial projections confirmed. Sladojevic in his affidavit said that Parker stated at the beginning of the 2 June meeting that he was attending "to evaluate the proposed purchase of shareholding in Tiltform WA". I note in passing that it was Lee's evidence that the reason Murabito and Parker went to Adelaide on 2 June was because Sladojevic had to agree to any transfer of shares. Parker's evidence on this was to the contrary. He was unaware of such an approval requirement at the time and had not by then been supplied with a copy of the licence agreement imposing it. 67 On 31 May 2000 Murabito rang Sladojevic. He informed Sladojevic that there had been discussions with Ilic in relation to purchasing a majority interest in Tiltform WA. He went on to say, according to Sladojevic, that they wanted to meet with him and Bell "to discuss the proposal and licensing issues with us". The following day Sladojevic sent a fax to Murabito confirming the meeting on 2 June at Tiltform Licensing's Greenhill Road offices. Murabito and Parker, who had flown in from Perth, were required to sign confidentiality agreements. It is Parker's oral evidence that Bell was introduced at the meeting as the accountant for Tiltform Licensing. He reiterated often in his oral evidence that he dealt with Bell "as an accountant". Bell later had informed him he had previously been the senior partner of a firm named Bentleys. 69 Despite the descriptions above as to the purposes of the meeting, there is wide divergence between Parker and Murabito on the one hand and Sladojevic and Bell on the other as to what transpired at it. The only contemporary documentary evidence of the meeting was Parker's notes of it. Significantly Bell denied that many of the matters referred to in the notes were discussed at all, or could be remembered by him. What he was insistent upon, contrary to Parker's evidence, is that he was never shown the projections let alone approved them. Without actually being shown the Parker notes, Sladojevic nonetheless confirmed that he recalled discussing most of the matters noted by Parker. I would note in passing that Sladojevic did take issue with one notation referring to "patent documentation". He emphasised there was at the time only a patent application. 70 It is unnecessary to reproduce the notes here. They refer to the technology and to its potential, and to the licensing agreement. Parker stated in cross-examination that he made the notes "while Sladojevic was talking" --- "during his explanation of where Tiltform was at". You can see from the notes that I have made that it was all good stuff. He informed you that as the technology was further developed, it would be made available to licensees?---That is correct, and that the projections that I had prepared were really not of any consequence because these improvements --- and you can see from the notes that I have made regarding door jambs, snap-on windows --- they were just going to blow the projections out of the water. He was there talking about proposed developments of the system which you, of course, took with a grain of salt until such time as they had been produced?---Oh no, it made me feel more comfortable that the projections that I had prepared which when I looked at them from an investor's point of view, were quite satisfactory. All I was hearing now was better news but I thought no more of it other than that. Parker nonetheless claims he provided Bell with copies of them and that the detail of items in them were discussed. I don't have a habit of noting absolutely everything that takes place in a meeting, bearing in mind this was a meeting at which we were discussing financial projections and we went down the various items composed in that, more particularly the profit and loss. Do you have a note in relation to that?---No. You are telling us that the confirmation of the financial projections was the prime purpose of the attendance?---It was my primary purpose of coming to Adelaide, yes. You don't have any note of Bell confirming the accuracy of your projection?---No, I don't. For his part Sladojevic denies having said this. He equally denies that the projections were tabled or discussed at the meeting. Murabito in contrast said that Parker discussed the projections with Bell while he was more in discussion with Sladojevic about the technology and its applications. Sladojevic confirmed that Bell and he were engaged in separate conversations. 73 Notwithstanding the applicants' pleading that misrepresentations were made as to an investment in the Tiltform group being a secure investment (Sladojevic) and as to the commercial viability of claims made by the Tiltform group as to the proposed investment in Tiltform WA (Sladojevic and Bell), neither of these loomed large in the evidence or in the applicants' submissions. They were not put explicitly and unequivocally to either respondent. Rather the applicants now contend that this meeting had "limited significance", this being that it showed that Parker was carrying out a "due diligence process" and that Sladojevic and Bell engaged with him in that process. This last is relied upon in aid of the applicants' distinct claim that Sladojevic and Bell conducted themselves as promoters. And I do not understand the applicants to be now relying upon them to establish their claims. As to the evidentiary use which they now seek to make of the meeting itself, I agree with their submission that the meeting has limited significance. The evidence given in relation to it is far from satisfactory. I do not consider that Bell has any independent recollection of what transpired at this meeting: cf my comments upon him as a witness. I equally do not consider Murabito's evidence to be reliable. 75 I am satisfied that Parker's primary reason for attending the meeting was as he suggested, i.e. to have confirmed the reasonableness of his projections. Given the very limited information to which he had access when he prepared them, it was understandable that he would seek such confirmation and from Sladojevic and his accountant. While I am satisfied that he discussed those projections with Bell --- and to this extent reject both Bell's and Sladojevic's evidence --- I am not satisfied that he did so in real detail. I consider that Parker's evidence to the contrary is unreliable and was probably a reconstruction elicited by the form of the cross-examination on that very matter. I equally am satisfied that he derived some reassurance about the investment from the meeting, but that Sladojevic's explanations of the technology, its applications and prospects contributed significantly to this. I do not consider that the absence of reference to the projections in Parker's notes is significant in this particular instance. 2. By 12 June 2000 the funds required to acquire the 72 per cent interest had been raised. The participants were to be Rawley Pty Ltd ($100,000), Icon Group directors ($175,000), Airport Consulting Pty Ltd ($75,000) and Connoisseur Holding ($225,000). These I will refer to as the WA investors. On the same day Murabito wrote separately to the directors of Tiltform WA and to Barone accepting their respective offers to sell shares to these investors. The agreement with Barone (which also involved discharging a debt of $70,000 owed to him by Ilic and an agreement by Ilic in turn to repay that amount to the investors) would result in his original $225,000 funding arrangement being paid out. It was envisaged by the Investors that a unit trust ("the Tiltform Unit Trust") would provide the vehicle for their investment. Arrangements were then made to meet with Tiltform WA's solicitors to formalise the share transaction. A meeting to that end was held on 22 June 2000. 77 Between 23 and 27 June Sladojevic, Bell and Benson each spent some time in Perth. The dates of their so doing (in the cases of Bell and Benson) and their respective reasons for their so doing are disputed. Meetings were conducted between variously one or more of Sladojevic, Bell and Benson, the directors of Tiltform WA, the Icon Group directors and (on 26 June) Parker. These resulted in the emergence of a new proposal which was put to the Icon Group and Parker at a meeting on 26 June. This was that the WA investors (who at that time probably were taken by Bell and Sladojevic to be simply the Icon Group) would take an interest in Tiltform Australia and Tiltform Australia would take over Tiltform WA. It was at the 26 June meeting that the two misrepresentations (one by Bell, one by Sladojevic) are alleged to have been made. 78 The evidence as to what transpired over this period is marked by sharp contradictions. To understand these I will deal first with the questions of when and why Sladojevic, Bell and Benson were in Perth. By way of backdrop to this I would emphasise that at the beginning of this four day period it was the understanding of the WA investors that they had committed themselves to an investment in Tiltform WA and that an investment in Tiltform Australia had not been canvassed. He gave contradictory evidence as to why he went to Perth. In his affidavit he states he attributed his trip to Perth to the suggestion of Sladojevic that he meet the investors who were looking to buy into Tiltform WA. Sladojevic denied this was the case in cross-examination. In Benson's cross-examination, he said he was in Perth to look at a trade show that Tiltform WA was putting on in its warehouse. He went to the show "by arrangement" (seemingly with Ilic); Sladojevic was there; and he was then told of the WA investors in Tiltform WA. It is unnecessary for me to make a positive finding about this matter, but I would indicate that the latter explanation for his trip probably is closer to what occurred than the former which I disbelieve. What is clear is that Benson left Perth on 25 June 2000. I say this so as to emphasise he was not at the 26 June meeting at which, as I find, a proposal under his name was distributed. 80 Bell . His evidence, supported by his office time-sheets, is that he was in his Adelaide office until 1.30 pm on 24 June. He flew to Perth on Sunday 25 June arriving late in the afternoon and he returned to Adelaide on 27 June. He said the purpose of his trip was to inspect the books of Tiltform WA to confirm the royalty payment that "we were due to receive", as also to facilitate the process of dealing with the change of the owners. Bell's positive disclaimer that he was in Perth on 24 June contradicts the contrary evidence of Sladojevic, Lee, Benson and Murabito. In relation to this matter I consider Bell's time-sheets are more likely to provide guidance as to his whereabouts than the evidence of those I have just listed. 81 Sladojevic . The evidence of Sladojevic is that he was asked by Ilic to come to Perth to meet a Mia Sarich who was a potential investor in Tiltform WA. Sladojevic gave evidence of two meetings with Sarich. The first was on the afternoon of 23 June at which Benson, Ilic and Barone were present. Murabito is said to have arrived at the warehouse but, on seeing Sarich there, waited outside until Sarich left. Sladojevic said they did not get on. Murabito denies he was at the premises on that day and that he first met Benson the following day (i.e. 24 June). Benson had no reliable recollection of a meeting on 23 June, although he accepted there was such a meeting, albeit with Ilic and Sladojevic. He gave contradictory evidence about Murabito's presence. He did not suggest Sarich was there. Nonetheless, he accepted he was at a meeting which had been arranged the previous night on 24 June at which Murabito, amongst others, was present. None of Sarich, Ilic or Jennings gave evidence in these proceedings. 82 The second claimed meeting with Sarich is said to have occurred at dusk on 25 June at a restaurant at which Benson and his wife, Bell, Ilic, Jennings, Sarich and Sarich's uncle were present. Bell's evidence-in-chief was that he had a "quiet dinner" that night with Sladojevic, Barone and Ilic "because we had a busy day coming up the next day". In cross-examination he gave evidence that he had dinner with Sladojevic and Murabito and that he only heard of the possibility of a separate investor on the morning of 26 June where Sladojevic told him that the Sarich group had dropped out. It was Benson's evidence that his wife was not with him on this trip to Perth and, as I earlier indicated, that he returned to Adelaide on 25 June though he could not recall at what time. He did not recall doing anything prior to his departure. Again Sladojevic's evidence is without corroboration and conflicts with that of Bell and Benson. 83 In the above circumstances, and for the reasons I gave earlier as to my view of the reliability of Sladojevic's evidence, I am not prepared to accept either that these two meetings with Sarich occurred or that he went to Adelaide for the reason he gave. I do not venture a view as to what his actual reason was. 84 In view of what I have said about the alleged meeting of 23 June, I am unprepared to make any findings as to whether a meeting or meetings were held on that day or as to what may have transpired at them. I emphasise this for this reason. It was put to Sladojevic in cross-examination that on 24 June, Benson, at Sladojevic's instigation, raised with the "Icon people" the possibility of them investing in Tiltform Australia. Sladojevic denied this and said: "That was first raised the night before [i.e. on the 23 rd ]" and by Murabito. Murabito has denied this. 85 It is clear that there was a meeting held at the Icon Group offices on 24 June which was attended by Lee, Murabito, Palmiero, Benson, Sladojevic and, probably Ilic and Jennings. Given my earlier finding, I am satisfied Bell was not present. That meeting, according to Lee, was concerned with finalising issues and having further discussions concerning the investment in Tiltform WA. He denied that the question of investing in Tiltform Australia was raised at this meeting let alone that the Icon people indicated they were interested in such a suggestion. Murabito's evidence, in contrast, was that the Tiltform Australia proposal was raised (he was not sure by whom); it was discussed in some detail; the Icon directors were interested in the proposal for a national licence; and it was indicated that the proposal would have to be discussed with Parker who would not be available until Monday, 26 June. Parker was in Melbourne. 86 Benson's evidence was that he proposed the Tiltform Australia investment, with that company then taking over Tiltform WA. He did not believe the ins and outs of the proposal were discussed. It was "more of a general overview of what my company proposed to do and how their company could benefit by being involved". He said Ilic and Jennings were keen on the proposal; the Icon Group showed some interest but were not going to proceed without getting input from Parker. 87 Sladojevic's affidavit evidence was broadly consistent with Benson's. In cross-examination he indicated he had approved the proposal; he regarded the verbal indications from the Icon directors and Ilic and Jennings as confirming the proposal; but he did not recollect it being decided that the parties would meet again on 26 June 2000 when Parker had returned. His affidavit, to the contrary, records (at par 118 that "a second meeting was arranged for Monday evening at the Icon Group's offices". In cross-examination he said this was wrong. I do not accept this retraction. 88 For my own part I am satisfied that, on 24 June 2000, the Tiltform Australia proposal was raised; was discussed in general terms; interest was shown in it; but a follow-up meeting was said to be necessary and was agreed for 26 June in the evening at Icon Group's offices. I reject Lee's evidence inconsistent with this. I will deal with these in two parts: events prior to the 26 June meeting; and the meeting itself. 90 Prior to the 26 June meeting. Bell gave evidence that he spent the whole of the day of the 26 th at the Tiltform WA factory working in Ilic's office. He said he briefed Tiltform Licensing's Adelaide solicitor, Richard Solomon, concerning the changes that were happening with the licence agreement and he was going back and forth with Solomon most of the day. He also looked at the Tiltform WA royalty issues. Sladojevic was also at the Tiltform WA factory during the day of 26 June. In cross-examination he indicated he could remember "specific discussion that day with Mr Solomon that Mr Bell had on the phone when I was present with Mr Bell". I will return to more of Sladojevic's evidence below. It was unsigned. Benson disclaims the authorship of the document which, for convenience, I will describe as the "Tiltform Australia proposal". He, nonetheless, acknowledges that he later made use of it to explain, inter alia, the essence of the proposal to his solicitors and his accountants. He gave evidence that he would "often" reproduce proposals put forward by Sladojevic that were acceptable to Sladojevic. To help achieve this growth, the directors have recognised the need for significant capital injection and the recruitment of competent staff in each of the rental locations. Establishing one outlet in each of Sydney, Melbourne and Brisbane each year for 3 years requires total capital of $5,500,000, however the proceeds of sub-license sales in the smaller rural areas and increasing revenue as outlets are established in the CBD and major country regions will fund most of the cost of opening these 9 outlets. Market penetration using our system within three years is expected to be 60% of all commercial tilt up construction, with additional potential from the housing sector as the development of this is rolled out (the housing market has not been included in the enclosed projections). 4) The allotment of shares in Tiltform Australia and purchase of shares in Tiltform (WA) shall be settled simultaneously during the same settlement. Accordingly we would appreciate your response to the proposal at the earliest time possible so as to enable preparations for the transaction to proceed. Bell and Sladojevic deny any involvement in its preparation. 97 There are in evidence two facsimile communications from the solicitor, Richard Solomon, to Bell, one of 26 June 2000 (which was received in Ilic's office by Bell and Sladojevic although Sladojevic said he did not read it); the other, of 27 June but which refers to discussions, etc. of the previous day. The 26 June facsimile refers to a telephone discussion and instructions received earlier in the day. The advice it provides (which relates primarily to the alteration and/or preparation of documents and the transfer of shares) was given in light of "commercial discussions [which] are taking place for Tiltform Australia to purchase all or the majority of the shareholding of [Tiltform WA]". 98 More significant for present purposes is the 27 June 2000 facsimile. In respect to Tiltform Concrete Form Systems (WA) Pty Ltd ("the WA company") it is proposed that this company sells all of its shareholding to Tiltform Australia Pty Ltd for $100,000, with settlement this coming Friday, 30 June 2000 , Tiltform Australia Pty Ltd simultaneously with the sale would lend to the WA company (which will then be a fully-owned subsidiary of Tiltform Australia Pty Ltd) the sum of $225,000.00 so that the WA company can make payment to Joseph Barone of his loan account of $225,000.00. Apparently, there is a loan account of Peter Ilic with the WA company for a far lesser sum than the amount of $225,000.00, which loan account is to continue after settlement because Peter Ilic will be purchasing shareholding in Tiltform Australia Pty Ltd (again, simultaneously with settlement on 30 June 2000). Given that Bell only arrived in Perth on the evening of 25 June (i.e. after the 24 June meeting where the deal was "done"), the most likely source of that information was Sladojevic. 99 Despite the evidence of Bell and Sladojevic to the contrary, I infer that Bell, at Sladojevic's direction, composed the Tiltform proposal at Ilic's office prior to the 26 June meeting. It is probably the case that inaccuracies in the proposal (e.g. that the Icon Group and Sarich might both invest - Sladojevic knew this would not occur because of mutual animosities) are attributable to Bell having the primary role in composing the document. As the 27 June facsimile from Richard Solomon indicated, Bell's instructions appear to have conceded he was not "sure of the particulars" relating to who was investing. I equally find that Benson was willing to, and did, adopt the proposal as Tiltform Australia's from when he became aware of it. Given his relationship with Sladojevic at the time and the known need for Sladojevic's approvals, I do not find his so acting to be remarkable. 100 The 26 June meeting. The evidence concerning this matter is both discordant and, in key respects, inconclusive. Virtually the only matter that is not controversial is that Murabito cooked a meal for those who attended. Indeed both Bell and Sladojevic sought in oral evidence to give the gathering the character of a get together for a meal. 101 As I have already found, this meeting was one agreed to at the 24 June meeting. Its purpose was to have Parker involved in discussing any proposed investment in Tiltform Australia. I reject Bell's insistence that the gathering at the Icon Group offices was not, and was not intended to be, a "formal meeting". Bell was not present at the 24 June meeting. His distinction between "formal" and "informal" meetings was neither convincing nor apt in the circumstances. 102 As to the persons who attended, I have already found that Benson left Perth on 25 June 2000. He did not attend this meeting. Parker arrived late to the meeting. His evidence was that he had "no idea" as to its purpose. The other attendees, Sladojevic and Bell apart, were Lee, Murabito, Palmiero and, although they played no significant role, Ilic and Jennings. 103 All of the witnesses, who attended and who gave evidence, with the exception of Bell, confirmed that the Tiltform Australia proposal document was available at the meeting. Lee's evidence is that Sladojevic presented them with it; Murabito could not remember how it came to be there; it was there when Parker arrived late; Sladojevic originally attributed its distribution to Benson (see below) but having recanted this as "reconstruction" (having heard Benson's evidence), he said he had no independent recollection of it being distributed; and Bell denied it was there, though he did give evidence of an envelope being there that he or Sladojevic was to take to Adelaide for Benson. Sladojevic disputed the envelope evidence. I would note as well that Sladojevic's counsel in final submissions suggested it would be a reasonable conclusion to find that the proposal may have been distributed by Ilic at Benson's request. Ilic was not called to give evidence in Sladojevic's case. 104 I find that the proposal document was available at the meeting and was discussed. I infer that it was brought to the meeting by Sladojevic or Bell (and if by the latter, at the former's direction). In saying this I find that it was prepared in Ilic's office and reproduced there. A discussion took place between Benson and Parker concerning the amount of money already invested in Tiltform Australia. 122.4 Benson said at this meeting words to the effect that he and his partner were investing $500,000, and that there was another investor in their group that was looking at investing $500,000. He added that if the Icon Group and Sarich each invested $500,000, there would be a total of $2 million invested. Neither Benson nor anyone else said that $2 million had already been raised. After I had reviewed the Tiltform Australia Proposal, I was comfortable with its terms and conditions, with one exception. The one thing of which I was unsure was the ability of TA, as national licensee, to fund the national operation ... I needed to know how the national operation would overcome a cash flow problem, if it arose, because there was no historical data to proceed with. There was no equivalent document to that which I had received to assess the position of Tiltform WA as in 'GBP1'. 19. So, after I had reviewed the Tiltform Australia Proposal, I asked Bell in the course of the ... Meeting if there had been sufficient equity capital raised by TA to fund its operations. I asked Bell this question because he was an accountant and I could rely upon what he said about the financial position. Bell replied with words to the effect of 'there is over $2 million already raised without your investment'. At exactly that point in time, Sladojevic interjected and said, words to the effect 'You blokes don't have to worry about money. We have already taken care of that and we've got plenty of people who want to invest', and he went on (at length) to say how 'stupid' we would be if we didn't take up the offer contained in the Tiltform Australia Proposal. Based upon what both Bell and Sladojevic had said, I considered that the raising of money and the honouring of commitments were not going to be a problem for Tiltform Australia. 19A. I also expressed the view at this meeting that I needed to know whether the return on our investment would be at least as good as our return if we limited ourselves to simply investing in the WA licence. Obviously the investors to whom I had spoken and had committed funds would need to be consulted if projections indicated a different result. He later prepared a facsimile to Benson (to be signed by Lee) to indicate interest in the proposal. He realised it was Benson's company they would be dealing with and in that facsimile he addressed his questions to him (see below). 108 Lee's evidence referred only to the $2 million representation attributed to Bell. You are quite clear in your mind about that?---Very clear. Did he say from whom?---No. Sladojevic didn't speak about the funding of Tiltform Australia at all at that meeting, did he?---I can't recall whether it was Sladojevic or Bell but it was definitely Bell who mentioned that $2 million had been raised even without our funds. Geoff said that "$2 million has been raised" or "words very similar to that". In cross-examination he revealed little recall of the detail of the meeting. He did say Bell referred to "$2 million" which he differently described as "it was mentioned by Geoff Bell that $2 million was going to be raised "; "$2 million has been raised " and "Bell then said $2 million is being raised by others ". 110 Sladojevic, as noted earlier, retracted his affidavit "$2 million" evidence quoted earlier. His evidence instead was of absence of recall, but also was a denial that $2 million was spoken of as moneys already invested in Tiltform Australia. Bell strenuously denied having made the representation attributed to him. This was consistent with his further denial that the meeting was a meeting as such. Bell gave general evidence in cross-examination relating to his views of capital raising by Tiltform Australia and of Benson. So do you deny that you had any discussions with Mr Benson on the topic of his getting investors?---Yes, I do. In fact, it was very much the opposite case. We could never find out from Benson what was going on. What were you trying to find out from Benson so far as what was going on?---Well, we naturally wanted to know what he was doing about raising capital. Well, that is what I am asking, Mr Bell. I am putting to you that you were continuously having discussions with Mr Benson on the topic of prospective investors - - -?---Not at all. There's a difference between being actively involved in promoting investors in Tiltform Australia and asking the principal of the company what they are doing about raising capital. I had no doubts about that. You had no doubts?---Because they had already brought in Ben Abraham. I am satisfied that after reading the Tiltform Australia proposal, Parker did question Bell on the company's capital raising --- the opening paragraphs of the proposal quoted above invited such questioning. In the context of that meeting and given that Tiltform Licensing both was the licensor of the company making the proposal and had to approve it, Bell was the appropriate person to whom to address such a question. I equally am satisfied that the sum of $2 million was referred to by Bell in ensuing discussion. I would observe in passing that, before his recant, even Sladojevic was prepared to acknowledge that reference was made to such a figure, though by Benson, not Bell. Consistently with my findings as to Bell's role in the preparation of the proposal, I do not accept Bell's evidence concerning the meeting. It was self serving and contrived. Bell, understandably, sought to minimise the significance that ought be given the meeting. Sladojevic's evidence, considered in the context of his recant, was unreliable. The actual substance of Bell's representation is less easily identified. Again given the context in which Parker asked the question, Bell's reference to $2 million probably expressly excluded the potential WA investment. Such is Lee's evidence. On the question whether the $2 million had already been raised, as distinct from was going to be, or would be raised, Murabito's evidence is equivocal. Parker and Lee are definite. The most that can be derived from Murabito's evidence is that Bell made some reassuring comment about the raising of (actual or prospective) $2 million. While Parker is definite that Bell said the money had been raised, I entertain some concern as to whether this in fact occurred and that, rather, it was something which Parker and for that matter Lee subsequently came to believe was said. Nonetheless, despite my misgivings, I accept that a representation such as Parker alleged was made and was false --- I do not say knowingly false --- at the time it was made, although I am satisfied that Bell had no reasonable grounds for making the representation. 112 I am less certain as to the significance it had in its setting, as I will later indicate, given Parker's subsequent inquiries concerning Tiltform Australia's equity capital. I equally accept that the representation was a quite unusual one for Bell to make in the business setting in which it was made. I am, though, satisfied that all concerned were at this time infused with enthusiasm for the technology and the potential it offered and were optimistic about capital raising prospects. 113 I equally am satisfied that at that meeting Sladojevic made reassuring comments concerning Tiltform Australia's position and the proposed investment, and he adverted to the interest being shown by others in investing. What he said was probably to the effect of the evidence given by Parker in his affidavit and, to the extent that it was taken as confirmation of what Bell had represented, it was false and Sladojevic had no reasonable grounds for providing that information. I should observe that the representations attributed to Sladojevic save for the 7 August letter, did not loom large in the evidence or in submissions. As I will later indicate they are of little consequence in this proceeding. 114 In making the above finding concerning Sladojevic --- and for that matter the earlier finding concerning Bell --- I am rejecting the evidence of both of them, not only in relation to the alleged representations, but also in relation to their professed lack of any knowledge (which I do not accept for reasons which will become apparent) of the financial circumstances of Tiltform Australia, of its fund raising activities and of those making exertions for its benefit. 115 Notwithstanding my findings, as I will indicate below, I do not consider that these representations were of any lasting significance, if they were of any significance at all. 3. The first relates to what can be described as the follow-up to the Tiltform Australia proposal; the second, the advent of John Dawkins as chairman of Tiltform Australia; third, the 12 July "BDO projections" produced for Tiltform Australia; and fourth, Tiltform Australia's fund raising activities. Parker, apparently on the same night, authored two documents for signature by others. The first was in the form of a letter to Benson. It referred to the "Proposal dated 25 June 2000" and it indicated that the signatories were "extremely interested in pursuing further discussions to progress taking us towards the result envisaged by such Proposal". The designated signatories were Murabito "on behalf of The Icon Group", Ilic "on behalf of himself and Tiltform [WA]" and Jennings "on behalf of himself". The document in evidence was signed only by Murabito and Ilic. It was put to Benson that the original was faxed to him. He had no memory of receiving it. 118 The second and more significant "Parker document" was a letter signed by Lee on behalf of Icon and faxed to Benson on or about the date it bore of 27 June. As will be noted below, Benson later supplied some of the information sought in this letter. The letter reiterated what was said in the first Parker document; it asked for clarification of "several issues"; and sought Benson's "assistance in providing the relevant information". The first of these related to "Financial Forecast". After referring to the projections Parker had made for the Tiltform WA proposal, it asked whether Benson was able to provide similar, detailed projections "which expand on the numbers you have used when referring to projected turnover and financing requirements so that we may relate the return on investment from Tiltform Australia to that envisaged from our investment in Tiltform WA". The second related to "Shareholding". It noted that what would be taken was a "minority shareholding". And it asked to be provided with a copy of the company's Constitution, any Shareholders' Agreement and details of the differences, if any, between classes of shares. It went on to deal, thirdly, with "Board Representation", fourthly, with the management of the WA operation and, finally, with settlement. 119 Benson replied by email on 6 July. He indicated that they were re-evaluating their forecasts; discussions with "a very high profile ex federal minister have resulted in him unofficially joining the group as chairman"; and he added: "I don't need to tell you how this profile will add credibility to Tiltform Australia along with instantly raising the value of the company". Lee phoned Benson in relation to the email. The notes made on the email of that conversation included: "concerned about manufacturing capacity"; "reiterated we are 100% roring (sic) to go"; and "new figures here on Monday". 120 Benson in turn by email sought to explore whether Lee was prepared to offer a $150,000 refundable deposit "to enable both parties to further cement relations". Lee ignored this. On 10 July Benson sent a facsimile to Lee providing "details as per your request". The company's constitution was provided. It was noted that "shareholders rights have been explored ... for a view to the future and possible overseas investment and expansion into Asia". It also indicated that "P & L --- Cashflow etc still not correct". Benson expected to send them the following day. They were provided on 12 July: see the 12 July BDO projections below. 121 On 11 July Benson sent a letter to Lee in which, in response to the 27 June letter, he said there was no shareholders' agreement and the shares were all to be ordinary shares. The reason for this is as explained previously, and that is the anticipated move into the Asian region will involve our joint venture partner becoming involved in the Australian holding company prior to our joint venture expansion into Asia. I consider this to be a judgment subsequently made. He did not, though, have any telephone discussions with Benson prior to receiving the 12 July projections. Dawkins later met Benson. On 7 July, Benson sent him an email seeking that he accept the position of chairman. Dawkins replied on 19 July indicating that "[s]ubject to my being satisfied with your capital structure, I would be happy to be involved as you propose". 125 In oral evidence Dawkins indicated that the capital structure of Tiltform Australia was "always the problem". Both he and Sladojevic agreed that even with the contribution from the West Australians, there was a need to secure other financing, "either equity or debt". Dawkins observed that while he did not discuss with Benson how the equity capital position was advancing in the first months of his involvement, he did with Sladojevic. He said he did mention a couple of names to Bell and Sladojevic of people who might be approached for equity capital and he mentioned a Mr Krogan of Elderslie Finance which had a specialist lease financing business for debt capital. He was not involved directly in discussions with the persons named. As Dawkins said: "I made some suggestions. It was up to [Bell and Sladojevic] to carry forward those negotiations". I would note in passing that Elderslie Finance was a subsidiary of a company of which Dawkins was a director. 126 I will return to Dawkins below. There is, though, one matter which can conveniently be dealt with at this point although it is only tangentially related to Dawkins. On 5 July (i.e. after at least Bell and Sladojevic, but also probably Benson, had had discussions with Dawkins) a meeting was held which, according to Bell's handwritten notes, was attended by Bell, Simon Abraham (whose company BDO (SA) Pty Ltd was Tiltform Australia's accountant), Nigel Benson and a Ms O'Boyle. Bell had no independent recollection of the meeting. Abraham had no notes of it and, while not disputing that the meeting occurred, had no recollection of what was discussed there even after reading Bell's notes. While I am not prepared to speculate as to what precisely the notes conveyed --- Bell's interpretation of them was not reliable and was not pursued in cross-examination --- the notes at least indicate discussions were had about Tiltform Australia's capital, the composition of the board and of the expectations someone present had of Dawkins as a funds raiser. While the purpose of the meeting is unclear, what I consider it does at least reveal is that at the time it occurred Bell was participating in a discussion about the internal management and affairs of Tiltform Australia. They took the form of profit and loss, cash flow and balance sheet forecasts for 2000-2001, 2001-2002 and 2002-2003 financial years. The monthly forecast for July and August 2000 in the Cash Flow Forecast made provision for "capital inflows" of $475,000 and $500,000 respectively and for none thereafter in that financial year. Parker interpreted the $500,000 as being that of his WA investors. The entry for loan capital was limited to $390,000 in July 2000, this figure representing vendor financing by Tiltform Licensing. The Cash Flow Forecast revealed a sharply declining bank balance from August 2000 until February 2001 beginning with $241,515 and ending with $15,901 (December) and $17,601 (January). The Balance Sheet Forecast identified that $310,000 had been raised as share capital prior to 30 June 2000. 128 In his affidavit Parker indicated that in his review of the 12 July projections he became alarmed that the projected capital inflow did not reflect the equity capital of $2 million "that Bell and Sladojevic had categorically stated had already been raised". In consequence, Tiltform Australia's closing cash at bank was extremely "thin" up until January 2001. He identified what he described as a "black hole" during the first seven months of trading where it was obvious that additional funds would be required to pay the outgoings of the rapidly expanding business. That "hole" he considered would have been filled by the injection of an additional $500,000 of equity capital. 129 After discussing the projections with Lee that day, Parker prepared a letter to Benson for Lee to sign. That letter indicated that the Tiltform Australia proposal continued to represent "a very viable alternative to the agreements we were in the process of finalising". total funding limit approved, security, guarantees, indicative rates and any specific lending criteria imposed in the deal. 4. Rather than embark upon a fresh series of telephone calls, faxes and emails we feel that the above issues are more expediently dealt with by meeting with you (probably in the next few days) to ensure that our involvement proceeds within the timeline set out in your projections. Neither did he seek to contact Bell about the projections or, for that matter, Sladojevic. And it was your understanding, at that time, that Tiltform Australia was Benson's company; yes?---It was Benson's proposal. Benson's company, Benson's proposal - - - ?---Yes and it was Benson's company. And it was up to him to arrange the investors?---Yes, it was. And that always remained your understanding from that time on, didn't it?---After having read what Sladojevic said and Bell said on the 26 th , what I was looking for was that funding had been confirmed . I was looking for it from Benson and I wasn't getting the answers". (Emphasis added. He said in his affidavit that the meeting was to be with Sladojevic and Bell. Parker said it was with Benson. Lee accepted in cross-examination that in the various telephone discussions he had with Benson prior to 17 June, he did not mention the equity capital that Bell was alleged to have spoken about. He said this was a financial matter; "[Parker] was looking after all financial issues". I would interpolate this was a constant refrain in Lee's oral evidence. 132 Parker and Benson arrived in Adelaide on 16 July. They dined with Benson and his wife that evening. This was the first occasion on which Parker and Benson had met. 133 Despite Lee's view as to the purpose of the meeting, it is clear that it was intended to be only with Benson. This said, both Bell and Sladojevic (though he arrived late) attended it. It is unnecessary to attempt to unravel what their respective particular reasons may have been for being there. I would merely say I do not accept that they attended for reasons of courtesy and to welcome visitors. Both Abraham and Bell kept notes of the meeting. From Abraham's note it seems that the meeting, which Bell says took place over five hours, addressed both the Tiltform system itself, its cost, the cost of the Australian roll-out and investment by Elderslie in the funding of the roll-out. He was not asked to explain the figures in his notes which appear to refer to sums in the order of $8 million. In his evidence Sladojevic said he was there simply to describe the technology. He explained that the "money back" reference in Abraham's notes meant that if you hired out a set of formwork four times in four months you would generate hire income to the value of the formwork itself. 135 A "Lease facility" was referred to in the 12 July BDO projections. Lee gave evidence that he was told by Benson prior to the 17 July meeting of approaches to Elderslie Finance about a proposed $8 million lease facility. To anticipate a related matter, on 24 August 2000 (several weeks after the Western Australians invested in Tiltform Australia) Elderslie Finance declined the proposed facility. 4. Printouts of it were produced in Bell's office. If we take out the costs associated with acquiring the formwork (now leased), we still end up with a cashflow problem within the first six months. 138 There were separate headings, for example, for "overheads", "lease facility", "share capital", etc. The agenda did not make any express reference to whether the $2 million said to have been raised at the 26 June meeting "had been confirmed". 139 Parker's account of the meeting had Sladojevic present from the beginning. He recalled working down the agenda. The second and third dot points were effectively discussed together. The amount of $475,000 shown in the BDO projections was identified by Benson as being provided by Chehade. Beside the second dot point on his own copy of the agenda Parker wrote the figure "$500" which he understood was to be injected by the joint venture partners in addition to the sums allowed for in the projections. He also wrote three "sub-licences", being a reference to the sale of sub-licences which would provide further income. His evidence is that after the Chehade money was identified he asked Bell about capital raising. He once again categorically stated that $2 million had already been raised from other investors and joint venturers. When I inquired about the 'joint venturers', he referred to the contacts that Dr Ben Abraham had in Malaysia. Dr Abraham was Benson's founding 'partner' in Tiltform Australia, and Dr Abraham and Benson wanted to ensure that they were front-runners in acquiring the licence for Malaysia. Sladojevic interjected and said words to the effect that capital raising was not our concern and told Lee and me that if we were not happy with the 'big picture' of the Tiltform technology we should 'piss off back to Perth'. Sladojevic made these comments as he stood up and moved around the table. He said words to the effect that 'you blokes are going to get rich out of this' and that 'if you don't want to be in this business, we have several investors who will take your place'. He then drew a large circle on the whiteboard and wrote the letters 'BP' inside the circle. It was then that he said that 'what you can't see is the big picture'. He went on to say that Tiltform had developed a 'Foam Panel' which would increase the profitability of the business but which had not even been factored into the forecasts. He said that there were many other things which would produce cash flow and profit that had not been factored into the forecasts; so many in fact, that he said that 'you might as well throw the forecasts out the window'. Sladojevic then went on to say, with respect to the 'Foam Panel' that had been left out of the forecasts, that it would enable Tiltform to 'crack the residential construction market', which would have a major positive impact on profitability. It was that he asked Bell directly "about the $2,000,000 you said had been raised, that is not reflected [in the cash flow]". This same dichotomy between affidavit evidence and oral evidence is to be found in Lee's evidence. 141 Parker made no contemporary note referring to $2 million. I would also note in passing that he indicated that by the time of this meeting he was aware of and "very happy about" Dawkins' proposed involvement as chairman. 142 Lee accepted in oral evidence that Sladojevic was not there to begin with but was there for the second dot point discussion. Sladojevic's evidence was that, though the meeting was to begin at 9 am, he did not get there until after 11 am. Given what I have said above, it is unnecessary to recount Lee's evidence other than to add that it confirmed Parker's evidence as well in relation to Sladojevic's intervention. 143 In cross-examination Lee acknowledged that it was plain from the BDO projection that nothing like $2 million had been raised. All of those issues that you referred to a few minutes ago?---Well, we were told that it was someone who knew someone from the Malaysian Royal Family and it was all a bit secretive but that's it and it was guaranteed and it was as good as in the bank and just not worry about it, let's focus on the picture. You don't say anything to the effect that it was guaranteed, that it was secretive, that you shouldn't worry about it. You don't say any of those things in paragraph 39 of your affidavit?---Well, we just took valid his word that it was guaranteed that it was going to be $2 million in it. Let's not worry too much about it now because we've got more important things to do. Not more important so far as you were concerned though?---Well, in the scheme of things it was very important. In the scheme of things the actual dollars raised was very important to you wasn't it?---Yes. You see you don't refer at all in your affidavit to Bell offering a guarantee or saying that the money was guaranteed. You go no further than saying --- I am sorry, I better pause there. You agree that you don't refer to Bell saying that the money was guaranteed?---Well, from our point of view he was the accountant at Tiltform and he was professional and we took him at word and we were about to become business partners and there was this element of trust. An element of trust in relation to someone whom you had only met on I think one occasion before?---Possibly one, that would be the Perth occasion, yes. Yes, not that I am denigrating Mr Bell but about whose professional reputation you knew nothing, isn't that right?---That would be a fair assumption, yes. I am sorry, Mr Lee, I just want to pursue this just a bit more. In your affidavit in paragraph 39 you say: Bell stated that Tiltform had been speaking to investors with connections to the Malaysian Royal Family full stop. Do you see that?---Mm. You don't go on to say: we've got promises, or rather he said we've got promises we're going to get X dollars from that source, or anything like that do you?---Well, what I say is that he raised $2 million from other investors". (Emphasis added. Are you suggesting also that any moneys put in by Benson and Ben Abraham were over and above the $2 million referred to, as you claim, by Bell?---Yes. In what you claim Bell said, you claim that he said: we have already raised $2 million?---That's what I heard him say. Why would that not include what Benson, Ben Abraham and Chehade were putting in?--- We just believed it wasn't the case. (Emphasis added. His evidence is that at the meeting where "funding in a broad sense" was being discussed Bell said words to the effect that $2 million in investment funds for Tiltform Australia had already been raised from investors other than the WA investors. He could recall little more of the meeting. He said that after the meeting in Parker's presence Lee asked him about whether Bell's statement was correct. He replied that he could not understand why Bell had said that because as far as he, Benson, was aware only $1 million aside from their proposed investment had been raised. Parker confirms this. Lee thought he asked Benson that question on another occasion. In his affidavit Lee ascribed Benson's observation on Bell's $2 million to a meeting he had with Parker and Benson on 4 September where Parker told Benson he was disappointed that Bell's $2 million investors had not yet paid their money. In his affidavit Parker said Benson confirmed his 17 July observation at the 4 September meeting. In cross-examination about this meeting Benson indicated that he was not the only person who knew how much had been raised and by whom. He referred to Bell and Sladojevic as instigators of some of the approaches made and he stated more generally: "Everything that we did in that office was done as a group". It appeared to me by that time that Sladojevic and Bell seemed to be in control of what was in fact happening and it may well have been, therefore, that Benson was not aware of what arrangements had in fact been made. My trust in Bell and the fact that he would not make a statement if it were not true was what I relied upon at the time albeit that as it turns out my trust was misplaced. In any event, from my point of view we had assurances about a further $500,000 in share capital which had filled the black hole which I had identified. But what you failed to say at this point in time in relation to the making of the investment, is that Mr Sladojevic confirmed unequivocally in the document yet to be discovered [i.e. the 7 August letter] that there were plenty of investors that were still going to be introduced to fund this thing ". (Emphasis added. He met and welcomed Parker and Lee at Sladojevic's request because they were using the Greenhill Road offices for the meeting. He and later Sladojevic nonetheless participated in the meeting. Bell took notes. While he denies emphatically making the representations attributed to him by Parker, Lee and Benson, he has little, if any, recall of what was said at the meeting. The order of the notes he took suggests that Parker did not deal with dot points two and three (relating to capital and cash flow) at the commencement of the meeting. Of Bell's six entries in his notes the last two were "$475,000 coming in" and "$500,000 over and above the WA to come in". Bell in cross-examination agreed that at this time he had no understanding of who was investing what amount. At that time, you understood that there was just short of $1 million, being the total of the figures on this note, being invested in the short term, plus the Icon investment?---Yes. Had Mr Benson, either at that meeting or some time prior to that, informed you how much capital he was seeking to raise in total?---He had indicated that he had already raised $1 million worth of capital and that they were looking to raise up to 2 million capital. Did he say to you that that $2 million was to be inclusive of the proposed investment of $500,000 by Icon?---No, there was no discussion on that basis. So all he said was that they were looking to raise $2 million in total?---Yes. Without distinguishing between - - -?---Yes. Do you recall whether or not that figure being a total --- a figure of $2 million that Benson was hoping to raise, do you recall whether that figure was mentioned at the meeting on 17 July?---No, it wasn't mentioned because it's not noted here. You are saying you don't recall it being mentioned?---That's correct. Mr Benson, in his evidence, said that Dr Abraham had approached some people aside from Icon and aside from Mr Chehade, to invest in Tiltform Australia. He referred to a person by the name of Stan Maka, M-a-k-a, and other contacts of Dr Abraham's in Malaysia. As at 17 July, were you aware of any of that going on?---No. Were you aware at any time from June through to September 2000, about any of that happening?---No. For the most part his oral evidence simply denied the claims made by Parker and Lee as to what transpired or else disclaimed recollection of what was put to him. He did maintain that he did not ask Bell to be there; the first he knew of the meeting was when he arrived at his office on that day; he was invited into the meeting to say "hello"; and he was then told the Western Australians had finalised their deal with Benson. The meeting was a pleasant one with no animosities. He was there for about twenty minutes. 149 There is one additional matter to which reference should be made concerning the 17 July meeting. It relates to the lease facility of $8 million being sought from Elderslie Finance. Both Lee's (hence Parker's) letter to Benson of 12 July 2000 and Parker's agenda for the 17 July meeting referred to the "Lease Facility" as a subject for discussion. 150 Parker's evidence in cross-examination was at that meeting that Benson referred to the application for this facility. ... I was going to tell you that not only was that lease issue raised but also the question of who is going to guarantee the bank overdraft. At that meeting?---It was on the cheat sheet. Who was going to provide the guarantees? Suffice to say that the proposal to raise $8,000,000 with this company in the way that it was, was ludicrous. I mean, I didn't know that meeting was taking place with Elderslie a few days beforehand but, quite honestly, whoever went to that meeting with an expectation of a new start company with this level of working capital in it at that stage was being very, very naïve. 151 Lee's copy of the 17 July agenda with his own annotations on it was in evidence. Beside the heading "Lease Facility" he had noted "8 million 15% Elders" and "Greg --- NAB --- 8.5%". Neither of you suggested at that time that there would be difficulties with directors' guarantees of leases?---I can't remember the directors' guarantees being discussed. In relation to this entry: NAB, that being a reference to the National Australia Bank, I assume?---Yes. What is the first word there?---Greg. To what does that refer?---In the course of discussions, $8 million from Elders at 15 per cent was discussed as being negotiated and Greg said he may know someone in NAB who he can speak to in relation to funding of 8.5 per cent instead of 15 per cent. Right, I see. So can I assume then that in the course of this meeting there was general acceptance of the proposal that formwork would be leased from one financier to another?---I can't recall exactly but anything to do with that financial decision would have been made by Greg. Right. He certainly didn't oppose that concept on that occasion?---I think he suggested he could probably get a better rate. Yes, but as a concept, leasing of formwork, he didn't object?---I don't believe so. I equally am satisfied that the subjects of capital raising, cash flows and the leasing facility were discussed and that Sladojevic arrived late but was present when the issue of capital was discussed (which Bell's sparse notes would suggest was later in the meeting). Though the Parker authorised letter of Lee to Benson of 12 July setting out the "areas" in need of attention was optimistic in tone (despite referring to the working capital available being ("very thin"), I am satisfied Parker had a concern about the 12 July BDO projections. This meeting was the opportunity to have that concern addressed. 153 As with the 26 June meeting I am satisfied that the figure of $2 million was mentioned in the context of capital raising and in the manner both he and Lee have sworn in their affidavits. I reject their inconsistent oral evidence that Parker put the $2 million representation directly to Bell. The explanation I accept more accords with the agenda for the meeting and Parker's concern as to the thinness of working capital. The oral evidence on this matter is unreliable and contrived. This figure seems to have been the amount which was perceived by Benson (see Bell's evidence) - and I infer Parker - as providing a satisfactory comfort zone for the proposed business. Despite his protestations to the contrary I again accept that it was Bell who referred to the $2 million. As I have indicated he was aware of Benson's $2 million aspiration; he had some real familiarity with the internal management and affairs of Tiltform Australia --- he had attended several meetings in the first half of July with Benson and Tiltform Australia's accountant, Simon Abraham; he was involved via Dawkins with capital raising (be it equity or loan) and, as I find, contrary to Bell's evidence, but consistent with Benson's, information about Tiltform Australia was exchanged between Benson, Sladojevic and Bell at the Greenhill Road offices including about potential investors and investments. 154 While Parker's evidence is that the representation was that the $2 million "had already been raised from other investors and joint venturers", Lee's evidence retreated from this to the point that "it was guaranteed", "it was as good as in the bank". I would have to say that in this particular matter I prefer Lee's evidence to that of Parker. Parker's evidence is a replication of his 26 June evidence. Not only do I have some doubt whether his 17 July evidence on this matter reflects an accurate recall of what was said, I consider that Lee's more qualified version more probably reflects what Bell said. Bell, I am satisfied, was aware of Benson and Abraham's pursuit of investors. It may well be that when making his observation he was simply giving expression to a confident expectation as to the outcome of dealings with another investor or other investors. Be that as it may, I consider it more probable that Bell would, in the then circumstances, have made the more qualified representation Lee attributes to him. That representation, insofar as it purported to describe an existing state of affairs was false on the evidence before me. Insofar as it referred to a future matter, it had not been shown that Bell had reasonable grounds for making the representation. 155 Benson's evidence of his response to Lee after the 17 July meeting corroborates Parker's and Lee's evidence of the Bell statement. Notwithstanding the circumspection I consider needs to be shown to Benson's evidence generally, I have no bases for disbelieving it here. It has not been suggested that Parker, Lee and Benson acted collusively in advancing their evidence in relation to this particular matter. 156 Before concluding with this meeting I should indicate that I reject the evidence given by Parker that he objected to the application for an "$8 million" leasing facility. On this matter I again accept Lee's evidence that not only was no objection raised at the time, but that Parker raised approaching the National Australia Bank for just such a facility. The importance of this will become apparent below. 157 The other matter I wish again to emphasise are first, that no contemporary document (whether a note or otherwise) makes reference to $2 million dollars; and secondly, neither Parker or Lee at, or after, the 17 July meeting contacted Bell to ascertain the identity of the "guaranteed" investors. As I later indicate I am satisfied that Bell's representation was not considered by Parker to be significant at the time and was, in the event, inconsequential. 5. As Parker indicated in his affidavit, the purposes of the meeting were to arrange for Abraham to produce revised projections and to address the issue of a proposed Shareholder Agreement. At the meeting at BDO Simon Abraham was instructed to introduce into the projections the additional working capital which had been discussed that morning. He was told to reflect introduced capital following 1 July 2000 as being $1.5 million subject to advice from Benson as to whether or not the remaining $25,000 would be coming from Chehade and if so, the timing of the receipt of those funds. 159 By 19 July 2000 Lee had prepared an "Action Plan" for Tiltform Australia which designated tasks, the person(s) responsible for each and review and completion dates. The completion date for all matters was 7 August 2000. I would note in passing Lee agreed in cross-examination that, while he and Benson had several discussions between 17 and 31 July on when the Icon investment would be made, "[t]here was no definite date". The Action Plan indicated that a "Business Plan" was urgently required for submission to Elderslie to support "our Leasing Application". It was prepared by Lee and Benson. Benson produced a draft which was provided to Lee on 21 July. 160 On 31 July Simon Abraham sent a revised set of projections ("the 31 July BDO projections") to Benson. These were copied to Parker. The "capital inflow" item in the Cash Flow Forecast now provided for $210,000 in July 2000 and $1,000,000 in August 2000. This represented only a $235,000 increase on the 12 July projections. There was not the $1,500,000 that was envisaged for capital in these months (subject to Benson confirming the amount of Chehade's investment). 161 Benson's evidence is that he would have read the projections; he knew at the time Parker was concerned about cash flow especially for the period December 2000 to February 2001; but he had no recollection of Parker ringing him to ask whether he had considered the new projections. I asked him which Directors he thought would be prepared to guarantee the overdraft. I also pointed out that the inflow of share capital was shown as only $1.21 million instead of $1.5 million. He responded that he had not had a chance to have a good look at the projections. I was sympathetic to that as I knew that he was spending a lot of time travelling around Australia preparing for the expansion of Tiltform Australia's business into other states. 163 Lee's evidence was that he did not see the 31 July BDO projections between 31 July and 9 August, the date he made his investment. This was to be their investment vehicle. Parker's evidence is that this was done before he received the 30 July BDO projections. His expectation then, he said, was that the investment would go ahead as they had "received assurances which satisfied me in relation to the black hole". 6. Photographs of 6 August which are said to evidence the breach were tendered. Benson's evidence is that he found out about the patent breach before the Western Australians made their investment. Indeed there is evidence that it was Benson who informed Sladojevic of rumoured breaches of the patent. Parker gave evidence that he was not so aware at that time. Bell who went to New Zealand on 5 August 2000 gave evidence of receiving a call on the evening of 8 August from Sladojevic who was "pretty agitated" and was told of the patent infringement. Sladojevic is said to have then had a long conversation with Benson who had gone to New Zealand on 7 August. 166 Though there is some uncertainty as to timing, Benson spoke to Sladojevic, probably on 7 August 2000, and informed him that the Western Australian investment would not be made on 9 August. He believed he told Sladojevic it would be made on 11 August 2000. He recalls Sladojevic expressing displeasure at this and Sladojevic told him he was going to send a hurry up letter to him to send to Western Australia. 167 Sladojevic in turn sent an email to Benson on the same day but denied as "untrue" that he asked Benson to pass it on both to Chehade and Parker and Lee. Sladojevic said his intention was to fire up Benson. 168 It is necessary to refer to the email in full. It contains four alleged misrepresentations relied upon in the Rawley proceeding. and N.Z. You have stated today that you have received notification from your proposed West Australian Shareholders that they shall not have their funds available for settlement until Friday 11 August. This is not acceptable to us at all and we are not prepared to entertain any further delays. and N.Z. ARE TO BE SETTLED IN 48 HOURS, ie by 4.00 PM Wednesday 9 August 2000. We are not prepared to accept any further delays or extensions to this deadline. We feel that the delays are totally unjustified and unwarranted. When we were in Perth the representatives of this proposed entity clearly intimated that their funds were quote "approved and in the bank' when it was a question of this entity taking over the majority shareholding in the W.A. License prior to the proposal for their involvement in the National Operation. If they are intimating now after all this time that they are still finalising the funds then I feel that they are probably not of the calibre required for the National Organisation. I accordingly feel that it might be a good time for you to resume negotiations with the other candidates, you will probably find that your chairman Mr John Dawkins would also agree following all the mucking around by the W.A. mob and Mr Chehade. I spoke to Mr Dawkins on two occasions today and on the second occasion he was asking about the finalisation of the deal with the W.A. syndicate and Mr Chehade. He apparently was not aware of the new delays thus I feel that you should notify him of same for I guarantee that he would not be impressed considering the offers that were let go from the other proposed investors. I an (sic) more than certain that Mr Dawkins could find replacement investors and settle with same within the specified deadline thus I highly recommend that you immediately consult with him first thing tomorrow morning upon your arrival in Auckland. If this is not received I shall be instructing Geoff to proceed with the sale of the License to our N.Z. candidate immediately whilst he is currently there. By the close of business hours tomorrow, if a satisfactory response is not received from you, we shall as stated declare the License open to other candidates and the amount of the up front License Fee shall be set at a minimum of $400,000.00 Australian which as you are fully aware is more in line with the actual N.Z. Market potential. If we do not receive a favourable response by close of business hours (Adelaide Time) tomorrow I shall personally settle with Mr Barone so as to remove him from the business. You have accordingly made a liar out of me for which I am not impressed. If I am to settle with Mr Barone then I shall proceed with the sale of the W.A. License to others. If the settlement deadlines I have set are not met within the time frame set than I shall proceed with the course of action detailed in the foregoing. Accordingly I strongly urge you to immediately get in contact with Mr John Dawkins as well as both the proposed W.A. Shareholding group and Mr Chehade. The latter was the subject of cross-examination and I am prepared to entertain it as in issue in the context of this letter. This is unacceptable. Based on your indication that the monies were to be forwarded on the 7 th August and promises were made to others including Robert for the settlement of the Western Australian outstanding amounts based on you deposit. Calls by myself for you to place a deposit were also wavered due to you (sic) preference to deposit the full amount. Much time has now passed with no monies changing hands. As these promises were made I had to inform Robert that the amounts were not due for another week. The response to this is as attached. I am not amused when I have spent several hours enticing Mr Dawkins to come aboard and now find myself in a position where he has spent some time today with our layers (sic) sorting out share details based on everyone's commitment, now looking at the prospect of breaking the news to him along with the attached letter. As you can appreciate what is stated in this letter is of grave concern to me also. Much time has been spent on this project by myself and others and I will not sacrifice that for you or anyone else. Advise me of your response in the morning. I will have my phone on whilst in Sydney so I suggest you call. If I don't here from you asap you will leave me no alternative than to go elsewhere at the end of the day. He also indicated that he had been told by the WA investors, but he could not recall by whom, that settlement would take place on 7 August and he told Sladojevic this. In his affidavit he stated that the investors --- he could not recall whom when crosss-examined --- later told him their moneys would not be available until 11 August. He told Sladojevic this and was then told by Sladojevic that he would send Benson the letter to be forwarded to the WA investors and Chehade with a view to putting pressure on them to get their moneys. 173 I would interpolate at this point that I am satisfied that the Sladojevic letter was yet another of those communications from him that have been referred to in this proceeding as a "strategy letter". It was intended to be sent to Parker and Chehade. It was designed to secure an advantage. And it was designedly misleading to that end. 174 I do not accept Sladojevic's evidence that he did not intend Benson to forward the 7 August letter to Parker and Chehade. While I consider all of Benson's evidence should be approached with caution, I do accept it on this matter. The purpose of the letter was transparent. It was directed at the West Australians and, unstatedly, at Chehade. Benson was the messenger. 175 Sladojevic's evidence on the genesis of, and reason for, the letter had various strands to it. These were that Barone and Ilic had been phoning him regularly from July asking when the matter was going to be settled; the date for payment of the WA licence was 1 July 2000; he was not (in July) aware of the shareholding structure of Tiltform Australia; he had lost faith in Tiltform Australia's ability to settle the deals; Benson in July did not have definite information on the date of settlement; in late July Benson told him settlement would be on 9 August 2000; he then promised Barone (who was to be paid out $225,000) that it would be settled on the 9 th ; after Benson' s 7 August communication of further delay until 11 August he was very upset and frustrated; Tiltform Australia had yet to pay the agreed licence fees for some number of the licences; he did not want his relationship with Barone, or his trust in him, to be jeopardised by the money not being paid as promised (Barone did not give evidence) --- hence the letter. He wrote it "to let off steam". 176 It is his evidence that Dawkins called him on two occasions on 7 August as he (Dawkins) could not get hold of Benson. He enquired as to how the Icon Group and Chehade investments were going. Dawkins accepted that he spoke to Sladojevic about that subject but could not confirm on what date and whether it was by telephone. He could not deny Sladojevic's evidence on the matter. Sladojevic admitted that on 7 August he did not have a genuine belief that Dawkins, if necessary, could come up with replacement investors. As he said: "I was more or less letting off steam". 177 Dawkins further indicated that he did not express concerns to Sladojevic as to the speed of completion of the Western Australian participation. It was the case, though, that until those negotiations were concluded, the proposed form of Tiltform Australia could not materialise and that was "a kind of precondition almost to my involvement". 178 He went on to say he did not "let go any investors": he had nothing to do with the negotiation in Western Australia. He was trying to help Sladojevic and Bell develop a capital base whether or not Western Australia was in or not. I had no doubt whatsoever that Sladojevic was referring to the other equity participants that Bell and Sladojevic had referred to during the conversations we had had [on 26 June and 17 July 2000]. Mr Sladojevic, I suggest in this letter is suggesting that replacement investors could be found in lieu of you, of your agreement, in fact suggesting that Mr Dawkins could find a replacement investor?---You could say that, yes. He equally considered Sladojevic was quite likely to terminate the approval for Tiltform Australia to acquire the WA licence, "[h]aving seen Mr Sladojevic in action previously". The reference that you made to Mr Dawkins, you said that you are reading it as if Mr Dawkins could find replacement investors to take out the Western Australian investment, or the Icon investment. I read that having raised this issue before of the $2,000,000 that is how I read that, not replace Icon. I sent a fax to Benson dated 11 August 2000 confirming that the balance of the $500,000 had been deposited ('the Icon Investment'). Lee's evidence is that he (Lee) did not despite Benson's request in his covering email, although he said "he would have had discussions with [Parker] and I'm sure [Parker] contacted him". Lee did not have any discussions with Benson before the WA investment was made. He assumed Parker had, although he could not recall Parker suggesting he had. 180 A copy of the 7 August letter with annotations in Lee's handwriting is in evidence. Lee said he made these the day he received the facsimile. I would note that the notation "$ in bank from others" was, Lee accepted a reference to "other known investors" i.e. Chehade. 181 Lee's evidence is that the further information referred to in the first annotation related to that which they were putting in the business plan. When he was asked whether they were not prepared to proceed without that further information he said: "Well, we needed further clarification on some issues". When asked whether they got that clarification at any time from Benson he said no. The only clarification he said they got referred back to the Bell promises that the $2 million "was as good as in the bank". This evidence reflected the reasons he gave in chief for the decision to invest --- Bell's assurances and trust in Tiltform Licensing. I suggest to you that the factors which caused you to make the investment were one, the prospect of making very substantial profits based on the projections which had been provided?---Partly, yes. Secondly, you thought that one way or another you would be able to overcome any cash flow difficulties at the end of calendar 2000?---Yes. Thirdly, you were confident that Tiltform Australia would, in fact, be able to enter into suitable leasing arrangements for the acquisition of formwork?---That was one of the reasons, yes. So notwithstanding your reservations, you put in the money?---With reservations. But for that statement, I would not have agreed to invest the Trust's funds. Nonetheless he did say at the meeting when the decision to invest was made Bell's $2 million statement was referred to by Parker. This reiterated what was said in his affidavit. His evidence in cross-examination about the investment itself is wholly unreliable. I am satisfied that Benson expected from his dealings with Lee that settlement would occur on 7 August 2000 --- his 7 August email to Lee suggests this as does the "Action Plan" he prepared with Lee --- and he communicated this to Sladojevic. Benson's later understanding of a delay in settlement until 11 August was, I infer, a consequence of a communication to that effect made to him by Lee on or before 7 August. Benson's communication of this delay to Sladojevic provided the opportunity for the strategy letter to be written. I consider the most probable explanation for the letter was that Sladojevic simply wanted to procure the early finalisation of the dealings relating to the WA licence and the WA investment in Tiltform Australia. I do not consider that Sladojevic acted as he did because he wished the WA investment to be made before the WA investors learned of the Pietrobon "patent" breaches. 185 As to the contents of the letter itself, I am satisfied it was, and was intended to be, misleading and that it contained representations which were either false at the time of their making or for which Sladojevic had no reasonable grounds for their being made. I find that the 48 hour cancellation threat (the Fourth Misrepresentation) was designed to exert pressure on the WA Investors to settle but was itself a bluff. Given there were not other significant investors in the wings, I consider it improbable that Sladojevic had any intention at the time of the letter of taking the course foreshadowed. I equally am satisfied that the "other candidates" representation (the Sixth Misrepresentation) was designed to suggest the existence of a state of affairs, i.e. negotiations could be resumed with "the other candidates", when that state of affairs did not exist and Sladojevic had no reasonable basis for believing that it did. It was a "leverage" misrepresentation, as was that relating to Dawkins finding replacement investors (the Seventh Misrepresentation). Sladojevic conceded he had no genuine belief concerning what Dawkins could accomplish when he wrote the letter. I am not satisfied on the evidence that the representation relating to an offer of "$250K" for the WA licence has been proved to be a misrepresentation. Even on their written submissions the applicants acknowledge that Sarich may have been a candidate to invest $250,000. Finally, the unpleaded representation that Sladojevic would settle personally with Barone and sell the WA licence to someone else was, in my view, simply a rhetorical flourish. Despite Sladojevic's unconvincing attempts in evidence to suggest both personal generosity and to stress the importance he attributed to personal relations and commitments, I consider this representation in the context of this letter to have been made again solely for leverage purposes. 186 I find that Parker did attempt to contact Bell after he received the letter and that his purpose was to ascertain whether Sladojevic was serious in making the threat he did. I do not accept that he also wished Bell to confirm that there were other investors already lined up. Parker's evidence on what he took from the letter about other investors --- be they investors allegedly "let go", replacement investors Dawkins could find or "other candidates" with whom Benson could resume negotiations --- was quite unconvincing and suggestive of self-serving reinterpretations of what was said in the letter. This is particularly evident in the affidavit evidence referred to above and in the interpretation he put on the letter in cross-examination --- see an example of this in his oral evidence quoted above --- an interpretation he conceded might be incorrect. I should emphasise I do not accept his evidence which he reiterated on some number of occasions that, at the time he received the letter he considered it conveyed (which it clearly does not) that "the $2 million" had been raised by Bell and Sladojevic from others. I do, though, accept his evidence also quoted above that Sladojevic's threat did not prompt him to make the injection of funds he did on 9 August. I will refer to that matter below. 187 Despite the notations he made on his copy of the 7 August letter (which were not alarmist in tone), I am satisfied from his conduct at the time that the letter was not a cause of particular concern to Lee. He did not respond to Benson's request. He seemingly left discussions with Benson to Parker, although his evidence on this may well reflect his obvious attempts to distance himself from responsibility for financial decisions --- a responsibility he assigned to Parker. Lee did not say he shared Parker's allegedly mistaken interpretation of the letter. And he had already indicated to Benson prior to the letter that the investment was to be made on the day on which it was made. 188 I am equally satisfied that the letter did not have the significance to Parker at the time that has been sought to be attributed to it in this proceeding. I consider it likely that, after some initial concern about the letter (hence the attempt to contact Bell --- though, seemingly, not Benson), its true character and purpose were perceived. As the WA investors had already determined to make the investment the only outstanding matter being the date of lodging the moneys in Tiltform Australia's bank account they commenced doing so on 9 August and disregarded the letter. On or about 14 August, Lee moved to Adelaide and assumed the position of General Manager at Tiltform Australia. He then undertook the preparation of additional financial projections and became aware the $2 million had not come in. He did not ask Bell or Sladojevic about it. 190 On 24 August Elderlie Finance declined the proposed leasing facility though it did offer to provide assistance in securing venture capital. This offer was not taken up. By the end of August a New Zealand branch had been opened. Premises, vehicles and formwork were acquired in Sydney and in Victoria though Tiltform Australia was short of funds to acquire formwork. 191 It is Parker and Lee's evidence that at a meeting on 4 September with Benson, Parker indicated he was disappointed that Bell's $2 million investors had not paid their money to Tiltform Australia. Benson is said by them to have confirmed that he heard Bell make the statement at an earlier meeting about $2 million already being raised, but had no idea why Bell said that. Benson did not give evidence on this matter. 192 From at least this time onwards attempts were made on a number of fronts to raise capital and to secure equipment financing. By mid-September Tiltform Licensing had proposed to invest $500,000 in Tiltform Australia for a 15 per cent share and to provide a draw down facility of $2.5 million for equipment purchases and the establishment costs of proposed rollout. An agreement to this effect was signed on 20 September 2000. 193 Personal relations between Sladojevic and Parker and Lee continued to deteriorate. As Dawkins put it "there were certainly strong views held on both sides" and personal criticisms were being made. At a meeting on 25 September 2000, at a meeting of Benson, Parker, Lee, Sladojevic and Bell, the above offer from Tiltform Licensing was withdrawn after an acrimonious altercation between Sladojevic and Parker. After Sladojevic had made accusations concerning the conduct of "the Western Australian operation", it is said by Lee and Parker, that Parker responded by reminding him of his and Bell's conduct that "was less than honest". Parker, it is said, then referred to Bell's $2 million having been raised and Sladojevic's August 7 ultimatum. 194 From this time personal relations broke down. The WA investors sought to sell their shares. The Tiltform group continued to loan finance to Tiltform Australia and continuing though unsuccessful efforts were made to raise capital. Tiltform Australia's liquidity problems prevented it from stocking adequate levels of hire equipment and from being profitable with positive cash flows. 195 An attempt in March 2001 was made through a Memorandum of Understanding to find a way for Tiltform Licensing and Tiltform Australia to work together, but failed again in circumstances of considerable acrimony. 196 External administrators were appointed by the directors of Tiltform Australia on 6 April 2001. 197 Finally, I would note that at no stage did Parker or Lee agree to, or sign, guarantees of Tiltform Australia's debts. Many of these complaints arose out of documentation associated with Sladojevic's strategy documents related to his dealings with Vinet. These particular complaints are no longer pressed. Nonetheless three remain. 199 These are, first, that Bell failed to disclose he acquired a shareholding in Tiltform Licensing in exchange for extinction of a debt due to him for professional fees; secondly, that Bell and/or Sladojevic failed to disclose that, in or about June 2000, Pietrobon's company, Tiltwall Services, whose hiring of the formwork had accounted for 60 per cent of the income for hiring in South Australia, had ceased hiring the formwork; and, thirdly, they did not disclose that in July that they had become aware that the reason Tiltwall Services had ceased hiring the formwork was that it, or someone associated with it, had developed its own alternative system of formwork. The pleading of each of these matters seems to have been prompted by Vinet strategy material. 200 I will deal with each of these matters briefly here --- they are the subject of complaint in the promoter claim as well --- though I would note that, in their misleading or deceptive conduct submissions, the applicants have not expressly addressed how and why these non-disclosures contravened s 995/s 52 though they nonetheless continue to press them. 201 By way of background to what I have to say I would observe the following. It is trite to say the question whether conduct in a given instance is of the s 52/s 995 proscribed character is to be determined having regard to all the relevant circumstances. Silence can render conduct misleading or deceptive if in all the circumstance the party complaining of the non-disclosure was reasonably entitled to expect that if the matters in question existed, had occurred, or were contemplated, they would be disclosed: see Hughes Aircraft Systems International v AirServices Australia (1977) 76 FCR 151 at 198-199 and the cases there discussed. 202 The seeming background relied upon to found a "duty to disclose" in this matter (at least for the purposes of the misleading or deceptive conduct claims) was Parker's claimed trust in Bell as a fellow accountant who was the accountant for Tiltform Licensing and whom he dealt with as such. 203 The evidence concerning Bell in this regard is slight. In Sladojevic's original letter to Murabito agreeing to the 2 June 2000 meeting Bell (who was to be in attendance) was described as "an integral part of our organisation and responsible for the strategic planning of our organisation". 204 It is Parker's evidence that the purpose of his trip to Adelaide on 2 June was "to have my projections affirmed by Mr Bell" and that he questioned Bell at that meeting "as the accountant for Tiltform Licensing". Sladojevic, according to Parker, introduced him as such at the meeting though he indicated he now worked out of Tiltform's offices "because he was heavily involved in Tiltform". In cross-examination for the second cross-respondent he denied that he considered Bell to be an "integral part of the Tiltform Licensing organisation". He never changed his view of Bell: "based on my own experience with participation with the businesses of my clients, I can be very heavily involved but I am still their accountant". Did he not come across to you as conducting himself in a manner consistent with that as an office holder of the Tiltform Group?---I can't say I ever gave that any consideration because my association with Mr Bell was always accountant to accountant. We spoke the same language. We had the same ethics. We basically belonged to the same organisations. I didn't reflect on Mr Bell being an officer of the company. There was no pre-existing relationship of trust between them. Parker only met Bell on two other occasions prior to the WA investors advancing their money. I have described the nature of those encounters. After the 7 August letter he unsuccessfully telephoned Bell for the purpose of ascertaining Sladojevic's intentions but Bell never replied to the messages left. 206 I would have to say on the basis of the evidence of the circumstances of Parker's dealings with Bell and of the functions Bell performed in them and especially of his appreciation that Bell was "heavily involved in Tiltform", I am unable to accept that his relationship with Bell could be a significant factor in founding a reasonable expectation that Bell would make the disclosures about which the complaint of non-disclosure is made. To the extent that Parker believed otherwise, i.e. that their relationship was one of trust, he was, in my view, guilty of self-deception in the circumstances. In the circumstances Bell was not --- and could not reasonably be considered to be --- acting as a detached professional adviser. The open plan of his firm's and Tiltform's offices was emblematic of his involvement in, and alignment with, the affairs of the Tiltform group. 207 To the extent then that a "duty to disclose" was nonetheless said to arise, this would seem to be because of the significance of the non-disclosed information given the nature and circumstances of the negotiations being engaged in. As to the information itself, that relating to loss of Tiltwall Services' business and with it allegedly of 60 per cent of Tiltform Australia's business was contained in a Vinet strategy document as Sladojevic explained in his affidavit: see para 38.45. Given its provenance I am not satisfied either that the information was other than misleading or that it should have been disclosed. It was misinformation at best. As to the information that Tiltwall Services, or someone associated with it, had developed an alternative system, this also was related in its emphasis to the Vinet strategy. The actual burden of the non-disclosed information has not been explained. To the extent that the reference to an "alternative system" is to be taken as suggesting that that system did not breach Tiltform's intellectual property rights, it simply reflects Vinet strategy misinformation on the evidence before me. If it is to be taken as suggesting that a breach of those rights had occurred (and this is not clear in the Rawley matter), the nature and financial significance of that breach and its possible bearing on the character of the investment being made (given that Tiltform Australia was the licencee of those rights) required explanation in the evidence. This did not occur. Parker's evidence of how he would have acted had he been told of it --- which was itself premised on the prior 60 per cent non-disclosure --- does not satisfy that need. No proper evidentiary foundation has been laid sufficient to support a duty in the circumstances to disclose this particular piece of information. 208 In any event, I am not satisfied the non-disclosures pleaded did, in all the circumstances, give rise to a contravention of s 52 of the TP Act or of s 995 of the Corporations Law. 210 Given that the primary relief sought is damages under s 82 of the TP Act or, in the alternative, s 1325 of the Corporations Law, the critical issue in this case is whether any or all of the contravening conduct materially contributed to the loss the applicants' claim they suffered in consequence of their making their investment. In this particular setting the applicants accept, properly, that it is for them ultimately to prove contravening conduct was an inducement to their making of the investment in Tiltform Australia: see Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477-478; albeit it need not be the sole inducement: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950 at 50,378; see also Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627 at [32] . As s 82 makes plain, the loss or damage suffered must be "by conduct of another person that was done in contravention of [s 52]": see Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. Notwithstanding the submissions made by Sladojevic on the potential difference between s 82 and s 1325 in this regard because of the former's use of "by" and the latter's "because of", this as will be seen is not a difference I need explore here given my findings. 211 It is unnecessary to enlarge on the above in any detail. It is well accepted. Consistently with that finding, it may be that, on the balance of probabilities, a party was induced to make a decision by a combination of factors including the misrepresentation. Assuming a non-trivial contribution to the causative process by the misrepresentation, then it may be actionable. Ultimately, the 'causative threshold' beyond which liability attaches to a misrepresentation which is one of a number of factors inducing a decision that produces loss, will be a question of judgment. This is a familiar process adverted to in various related contexts by Mason CJ in March v E & M H Stramare Pty Ltd (supra) and in this Court in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419 and Pavich v Bobra Nominees Pty Ltd [1988] ATPR 49,849. (See also Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712). But the mere possibility that a misrepresentation might have induced a course of action by the representee can never of itself attach liability under s 82 to the making of it. I am satisfied that those representations played no part in their decision to invest. I regard the evidence given to the contrary by Parker, Lee and Murabito as unreliable. In each of their cases it reflected at best reconstruction and rationalisation resulting in the creation of a collective memory. Their decision was one in which Parker was influential. They backed their own judgment as to the prospects for the Tiltform technology and Tiltform Australia. In so doing they assumed a risk that adequate working capital would be secured and the short term cash flow problem overcome. They did not rely upon Bell or Sladojevic. They knew, or ought to have known, through Parker, that Bell's "$2 million" had not been raised. Their investment decision was not relevantly influenced by Sladojevic' s 7 August letter. 214 I have, in outlining the evidence for the misleading or deceptive conduct claims, referred not only to the context in which those representations were to be evaluated for the purpose of determining their falsity or otherwise but also to the context in which their causative significance is to be judged. The following are my reasons for the conclusion I have foreshadowed. 215 There are five matters of general significance to which reference should be made at the outset as they bear in various ways on the resolution of the present question. First, the relevant events occurred over a relatively short period, i.e. from 2 June to 9 August, and at a time when both Tiltform Australia was in its infancy and the national licence system had not been established. Secondly, the contact between Parker and Lee on the one hand and Bell and Sladojevic on the other in this period was quite limited. Less so the contact between Lee, though not Parker, and Benson. Thirdly, all of the above persons, it can be inferred, were aware that in order to succeed Tiltform Australia would have to have sufficient working capital to address both licence fees and investment in formwork. The licence agreements and the disclosure documents made this clear. Thirdly, there was at the above time a considerable level of enthusiasm being demonstrated for the Tiltform technology, its use in the construction industry and in its profit making potential. Bell and Sladojevic and the WA investors exhibited that enthusiasm. Fourthly, the clear inference to be drawn from the evidence is that the climate in which the negotiations occurred for the WA investment in Tiltform Australia was one in which buoyant expectations were entertained that working capital would be forthcoming. Dawkins advent as "chairman" of Tiltform Australia in late July clearly provided some stimulus to this. Fifthly, the WA investment was made in Tiltform Australia which at the time was, and was known by the WA investors to be, Benson's and his joint venture partner Dr Abraham's company. No investment was being made in Tiltform Licensing. Neither Bell nor Sladojevic held offices in, or were shareholders of, Tiltform Australia although as I will later indicate a claim is brought against them as promoters of that company. 216 It is clear that, from the outset, the directors of the Icon Group --- Murabito, Palmiero and Lee --- made their own highly positive business judgment of the virtue and attractions of the Tiltform technology, of its profit making potential and of the advantage of acquiring a licence of it. When Parker was offered participation in the investment opportunity Tiltform WA, he in turn came to share the same positive attitude to the Tiltform "opportunity" after his initial meeting in Adelaide on 2 June with Sladojevic and Bell --- an attitude contributed to significantly by Sladojevic's explanations etc of the technology. I need not repeat here my findings on that meeting other than to say I do not consider that Parker's projections were discussed in detail with Bell at that meeting, though there was discussion of them. The collective decision of the WA investors to accept the offer of shares in Tiltform WA within ten days of Parker's return from the 2 June meeting provides some evidence, in my view, of their faith in the Tiltform technology. 217 Their preparedness to countenance abandoning that investment in favour of one in Tiltform Australia is, in my view, a further reflection of this --- although, for prudential reasons, the Icon Group directors were not prepared to proceed without getting input from Parker. This reliance upon Parker for advice about financial aspects of the investment, or else for making appropriate inquiries on such matters --- reliance evidenced in differing ways in the evidence of Lee and of Murabito --- reflected the course previously taken in relation to the Tiltform WA investment. It assumed far greater significance in relation to the investment in Tiltform Australia. I infer that all of the WA investors were satisfied with the Tiltform technology itself at time of the investment. Murabito indicated he made his own assessment of that. Where the investors required advice was in relation to the financial assessment of the decision. Though Lee participated in some degree in the meetings and actions taken leading to the making of that assessment --- a participation, as I have indicated, that he self servingly sought in evidence to down-play --- it is the case, and I so find, that Parker assumed primary responsibility in that matter. I am satisfied that the investors other than Parker relied upon him at least to the extent that he raised no matter either to dissuade them from investing and to signify his own unpreparedness to invest. I will return to this below. In a very real sense, the question of whether the WA investors relied upon the contravening conduct of Bell and Sladojevic is one whether Parker relied upon that conduct. 218 As I have earlier found, the first of Bell's $2 million representations and Sladojevic's seeming confirmation of it, were made at the 26 June 2000 meeting in Perth. I have indicated what were the circumstances of its making. While I have found Bell's representation to have been false I have made no finding as to whether it was knowingly, notwithstanding my rejection of Bell's evidence and his professed lack of knowledge of the financial circumstances etc of Tiltform Australia. 219 Parker's affidavit evidence was that he took from the representations of Bell and Sladojevic that the raising of money and the honouring of commitments were not going to be a problem for Tiltform Australia. Parker clearly was enthusiastic about the "Benson proposal" (which, as I have held, was authored by Bell at Sladojevic's direction) --- as is evidenced in the language of the follow-up documents ("extremely interested in pursuing further discussions") he (Parker) authored on the same night. These were sent to Benson as Parker properly realised it was Benson's company they would be dealing with. 220 Significantly, Parker did not seek further elaboration of the comment from Bell at the time --- or, for that matter, at any time thereafter. Equally the follow-up letter to Benson of 27 June made no explicit reference to the $2 million purportedly raised. The proposal, though, did seek detailed financial projections. It also sought the copy of any Shareholders' Agreement. Parker said in cross-examination that "any money raised [i.e. as represented] should have been represented on the financial forecasts". He did not ask the identities of the existing shareholders. 221 In my findings on the 26 June meeting I indicated that I did not consider these Bell/Sladojevic representations were of lasting significance, if they were of any significance at all. Parker conducted his own due diligence and the questions he asked in the 27 June letter were in his own words "the first of a process of due diligence". While he may, at the time, have taken from the representations that the raising of money and the honouring of commitments were not going to be a problem for Tiltform Australia, I am satisfied he set out on his own course to verify whether such was the case. This, in my view, is why at no stage did he seek any elaboration of Bell's comment from Bell. 222 Benson's communications in response to the 27 June letter were with Lee (the letter's signatory). Eventually he provided the very answers Lee was looking for. This was in the 12 July BDO projections. The projected capital inflow produced did not reflect raised equity capital of $2 million. Parker, I find, accepted the reality of what this signified and its consequences. While concluding that the working capital provided in the forecasts which would be available in the first six months or so was "very thin", he again composed a letter to Benson of 12 July (signed by Lee) indicating their belief that "the proposal continues to represent a very viable alternative" to the investment in Tiltform WA. Despite his evidence to the contrary, I find that by 12 July neither he nor Lee had any belief that $2 million had been raised independent of the WA investment. I infer this in Lee's case because of the ongoing dialogue between him and Parker. 223 I am satisfied, furthermore, that his "viable alternative" statement reflected his belief at that time. I consider it probable that the substance of Benson's communications with Lee prior to receipt of the BDO projections was communicated to Parker. This included, first, the prospect of Dawkins (as yet unnamed) being chairman which, as Benson observed in an email to Lee, would add to the credibility of, and instantly raise the value of, Tiltform Australia; secondly, an indication that negotiations with another two investors were nearing completion; and, thirdly, approaches were being made to Elderslie Finance for a proposed $8 million leasing facility. Though Parker in his evidence scorned the last of these, I do not accept his evidence on that matter as I have previously indicated. He acknowledged, though, that he was by 17 July already aware of, and very happy about, Dawkins' proposed involvement. 224 The second $2 million representation, as I have found, was made at the 17 July meeting between Parker, Lee and Benson into which Bell and Lee intruded themselves. Parker had neither met, nor spoken to, Benson before he went to Adelaide for that meeting. 225 I will not repeat here my findings concerning the making of that representation. However, I would note the following. First, I have found that Parker prepared an agenda for that meeting. That agenda, while dealing (inter alia) with working capital made no reference to Bell's $2 million that had not been raised. In my view it is unsurprising it did not. As I have found by the date of that meeting Parker did not believe that it had been raised. Indeed the question he said he asked of Bell in his affidavit --- "whether TA's capital raising would compensate for the deficiencies in working capital" --- is quite consistent with that finding. 226 Secondly, I would note that the evidence both of Lee and of Parker, to the extent that it suggests Bell made any further elaboration of his comment, linked the alleged capital raising to Benson's co-venturer in Tiltform Australia, Dr Ben Abraham. If such had occurred Benson would have been likely to have known of it. 227 Notwithstanding Sladojevic's intervention after Bell made his observation, neither Lee nor Parker sought later elaboration from him. Each knew that they could derive confirmation of what Bell said from Benson. I have referred to Benson's evidence earlier and to my acceptance of it. Lee in Parker's presence asked him after the meeting whether Bell's statement was correct and he replied he could not understand why Bell had said that because, as far as he was aware, only $1 million had been raised apart from their proposed investment. 228 I find that Lee and Parker accepted and acted on what Benson had said. Bell's representation was neither believed at the time, nor was it relied upon. A clear indication of this is given by Parker in his affidavit (at pars 30A and 30B) where he described the 17 July meeting with Simon Abraham of BDO to prepare revised projections that introduced into the projections "the additional working capital which had been discussed that morning". In this, I find, Parker and Lee were continuing their due diligence process and were working towards having prepared for them projections to be utilised in making their financial assessment of the WA investment. In other words, they were making their inquiries and conducting their negotiations without regard to Bell's representations. Their actions belie their evidence to the contrary. 229 If Parker had any residual hope that Bell may have been correct --- and I do not consider he did --- the worsening position revealed in the 31 July BDO projections gave him reason to seek answers from Bell in whom he claimed he had trust. He did not. Parker contacted Benson. I consider he did so because he was relying on Benson in relation to information about capital raising. It is unnecessary for me to make a finding on whether he told Benson the WA investors would not commit until the issue of working capital had been resolved and could be confirmed. I would observe, though, that this observation in his affidavit bears in the context of this proceeding a distinctly self-serving character. What is important is that Parker's dealings were with Benson and, insofar as they were founded on financial information, that information was provided by, or at the direction of, Benson. 230 As I indicated in my findings on the 17 July meeting, Bell's representation was without significance to, and was not being relied upon by, Parker and Lee. 231 While the quite separate misrepresentations made by Sladojevic in the 7 August letter may be thought to have provided an inducement to Parker and Lee to make a precipitate investment, I am satisfied that it was not causative at all of the WA investors' decision to invest. None suggested that it was and Parker positively disclaimed that it was the likelihood of Sladojevic terminating his approval that prompted the injection of funds. 232 I find that Parker and Lee may have had had some initial concern about the threat --- hence Parker's attempts to call Bell for this reason (though, as I have found, not for confirmation that there were other investors lined up) --- but they then disregarded it. They did so because, after having already executed the Tiltform Unit Trust Deed (Parker sought to minimise the significance of this by saying it occurred before he received the 31 July BDO projections), they had already made the decision to make their investment. The remaining matter for them related simply to when the monies would be deposited. It was to have been 7 August but, as I have accepted, this was to be deferred until 11 August. I would note that the first instalment of the investment moneys (from Parker) was in fact paid into Tiltform Australia's account on 9 August 2000. This, coincidentally, was Sladojevic's deadline day. 233 On the state of the evidence, it is impossible to be precise as to when and how the decision to invest was made. I am satisfied that it was made prior to 7 August. I infer this from the Benson-Lee communications that led to the 7 August 2000 letter, the last of which probably occurred after Parker had received the 31 July BDO projections. It may have been the case that the investors met and discussed the investment on several occasions over the period after 17 July and before 9 August (when investment moneys began to be deposited into Tiltform Australia's bank account) --- Lee's oral evidence would seem to support this --- and that a final meeting was held after 7 August. What I do not accept is that at that meeting (if it occurred), or at any prior time, Parker gave any assurance to the others about Bell and Sladojevic's representations, or that the others made their decision to invest because of those representations. This said, I accept that at some time prior to the first instalment of the investment moneys being advanced by Parker on 9 August, Parker and probably Lee did provide their own financial assessments of the viability of the investment to the others. 234 I consider the WA investors made their decision because of the optimism they entertained about the prospects of the investment, notwithstanding that the 31 July BDO projections indicated significant short term cash flow problems. It is not for me to speculate upon what motivated Parker to commit to the investment decision and to communicate this to the other investors, though I consider that factors such as expectations concerning Dawkins' capital raising capacity, the availability of a significant leasing facility and the technology itself may have been influential. I should emphasise I do not accept that the investment decision was made as Parker, Lee and Murabito have said, or for the reasons they gave. I consider their accounts to be quite improbable. 235 Lee probably went to the heart of the matter when in cross-examination he accepted (as I earlier quoted) that the factors which caused him to make the investment were the prospect of making very substantial profits, their ability to overcome the cash flow difficulties and confidence in being able to enter into suitable leasing arrangements for the acquisition of formwork. Lee, as I have earlier noted, resiled from this in re-examination and reverted to his original explanation that he decided to invest because of Bell's $2 million and of trust in what each party was telling the other. I do not accept this explanation for the reasons I have given. 236 For the sake of completeness there is a number of ancillary matters I should note. First, I do not accept that Parker did misinterpret the 7 August letter at the time. It provided no assurance as to Bell's representation. His evidence (affidavit and oral) on what the letter conveyed to him was inconsistent and wholly unconvincing --- the moreso because, as I have found, (a) by the time of the letter, Bell's representation was known to be incorrect and was not being relied upon in the due diligence in which Parker had been engaged; and (b) the decision to invest had already been made. 237 I equally do not accept evidence given in cross-examination by Lee that appears to suggest that Benson, on occasion, confirmed Bell's representation. Benson's evidence on the 17 July meeting and Lee's and Parker's on the 4 September meeting with Benson in Adelaide (which I accept and which evidence Benson's conduct) is quite to the contrary. In the case of Bell there were two instances of this. The first was the $2 million representation made at the meeting in Perth on the evening of 26 June 2000. The second was the $2 million representation made at the meeting in Adelaide on 17 July 2000. In Sladojevic's case there also were two instances of such conduct. The first was his comments on capital at the 26 June 2000 meeting which, in context, were confirmatory of what Bell had represented. The second was the complex of misrepresentations contained in the 7 August 2000 letter. 239 I am satisfied that both Bell and Sladojevic had no reasonable grounds for making the representations that they did. I equally am satisfied that when they made those representations each was acting as either an officer of Tiltform Licensing (Sladojevic) or as a financial adviser to, and as speaking for, Tiltform Licensing (Bell) and that in consequence the representations so made were representations of Tiltform Licensing. I will refer further in the "Promoter Claims" to their respective functions in, and for, Tiltform Licensing. Further I am satisfied that for the purposes of s 75B of the TP Act (if applicable in the circumstances), they had actual knowledge of the essential elements constituting the contravention and in particular that they had no reasonable grounds for making those representations. 240 Notwithstanding the above, I am not satisfied that the WA investors suffered any loss by that conduct for the purposes either of s 995 of the Corporations Law or of s 82 of the TP Act (which in any event I consider has no application to this matter because of s 51AF). I have concluded that the WA investors made their own, independent judgment about the investment without regard to the above representations and made their decision accordingly. 241 The basis of my decision turns critically on issues of credibility and of reliability of evidence. For this reason I do not consider it necessary to consider those other matters which would require determination if I had come to the contrary conclusion on causation and, in particular, (i) the decidedly unusual contention that the first applicant had no standing to bring this proceeding; and (ii) the causation issue of whether Tiltform Australia so conducted itself as to be responsible for its loss. I would comment in any event in relation to the second of these, that the issues sought to be ventilated were matters for expert evidence. None was tendered. 242 The misleading or deceptive conduct claims against Bell and Sladojevic will be dismissed. While it is clear that the claim is cast in a way that alleges that Bell made representations and failed to make certain disclosure intending to induce the WA investors, but particularly Parker and Lee, to act in reliance on him and on what he said, the pleading is not altogether clear as to the respects in which he acted negligently. It is claimed he acted negligently in making the two $2 million representations, but the pleaded particulars of this are for the most part unrelated to those representations. It is also claimed he acted negligently in making the representations attributed to him at the 2 June meeting. However, the particulars given (which concern matters not disclosed) relate, save for his shareholding in Tiltform Licensing, to misinformation generated for the purposes of the 2000 Vinet strategy. 244 I am prepared to assume that the circumstances of Bell's dealings with the WA investors and with Parker and Lee in particular were capable of giving rise to a duty of care. I equally am prepared to assume that he so conducted himself that such a duty would have been breached in his making the two $2 million representations had those representations been relied upon. However, for reasons which parallel those leading to the failure of the misleading or deceptive conduct claims, I am satisfied that Bell was not guilty of actionable negligence. His representations were not relied upon. And, in relation to the alleged negligence arising from non-disclosure, he again was not being relied upon to provide more information than he actually imparted. The WA investors made their own decisions without regard to the information Bell supplied. Neither did they reasonably rely upon Bell to disclose to them information concerning the investment if Bell knew it existed. 245 I will dismiss the negligence claim against Bell. Both Bell and Sladojevic are claimed to have been promoters of Tiltform Australia. The burden of these claims is that they were in consequence fiduciaries, although as I will indicate, there is very real opacity as to whom their fiduciary duty was owed, what that duty comprehended and how it was breached. 8.8.2 Bell sought the identification of an investor or investors who had the financial means to proceed to take up licences from Tiltform Licensing from in or about January 2000 and at all material times thereafter. 8.8.3 Bell on behalf of Tiltform Licensing constituted Benson as the agent of Tiltform Licensing pending satisfactory completion of licensing agreements for all Australian states save Western Australia by letter dated 2 May 2000. 8.8.4 In or about June 2000 participated in discussions with Benson and [Sladojevic] to secure one John Dawkins to be the Chairman of Tiltform Australia to aid in the raising of capital for Tiltform Australia. 8.8.5 Following the incorporation of Tiltform Australia by Benson undertook with [Sladojevic] to advance the taking up of capital in Tiltform Australia with a view to that company implementing and participating in the Tiltform Australia Proposal [of 26 June 2000]. 8.8.6 Bell fulfilled the undertaking (8.8.5) by engaging in the activity and conduct of himself and [Sladojevic] as pleaded in [relation to the misleading or deceptive conduct claim]. 8.8.7 Bell together with [Sladojevic] stood to benefit from the implementation of the Tiltform Australia Proposal by reason of his [shareholding in] Tiltform Licensing. Tiltform Licensing agreed in a separate letter of the same date to Benson registering a company ("Tiltform Holdings Australia") which, on completion of the licensing process, would hold the Australian licences (excepting WA). The above pleaded letter appointed Benson Tiltform Licensing's agent in Benson's dealings with "sub-licences" of the Australian licences until completion of his company's licensing agreements with Tiltform Licensing. It was, in other words, an interim measure permitting Benson to enter into sub-licence agreements before his own "head" agreement with Tiltform Licensing had been completed. It is difficult to see how this letter could conceivably be relevant in establishing the fiduciary relationship alleged. 249 In Sladojevic's case, his status as promoter is particularised in relatively similar, but counterpart, terms to those of Bell. 251 In their written submissions this amalgam is explained in the following way, i.e. Bell and Sladojevic "were promoting the benefit of their licensed product through Tiltform Australia and the Applicants were entitled to consider them as within their confidence". Relying, in particular, upon the terms of the licence agreements with Tiltform Australia, it is said investors in the position of the applicants would know they (i.e. the applicants and Bell and Sladojevic) "were in it together, would believe that the promoters' actions and advices would be as much in their [i.e. the applicants'] interest as their own, and would be made for the mutual purposes of the relationship, and not for the promoters' own self interest". I have indicated earlier in these reasons that the licence agreements contain clauses favourable to the licensor --- I would instance intrusive powers to control the licencee --- which are commonly found in exclusive licences involving the use and exploitation of intellectual property: cf Pacific Brands Sports & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 ; (2006) 149 FCR 395. 252 The above would seem to be suggesting that the licensing agreement constituted a fiduciary relationship between Tiltform Licensing and Tiltform Australia. When I put this, in my view, extraordinary proposition which would turn fiduciary many exclusive dealerships, agencies, intellectual property licences, etc.: cf Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41; counsel for the applicants resiled from it. However, in supplementary submissions, counsel re-embraced the above though with one additional matter of emphasis which is said to be "critical". This is that Sladojevic and Bell "were promoting the take up of shares in Tiltform Australia and advancing the licence that Tiltform Australia had with Tiltform Licensing is (sic) the reason why the proposed investors should seriously consider the investment. I note in passing that the substance of the proposal - the making of an investment in Tiltform Australia --- had already been discussed at the 24 June 2000 meeting. 254 In any event, it is said --- in my view surprisingly --- that this is a case "where the existence of a fiduciary relationship is indicated by the particular licence agreement alone". They point to the licence being an exclusive Australia wide one; to the fact that the position of Tiltform Australia in the Tiltform Group was fundamental to the success of the Group; and to the terms of cl 11.1.2 of the agreement which imposed, in essence, what is commonly encompassed in clauses imposing duties of fair dealing on parties to long term commercial relationships: I refer, purely for reasons of convenience and because good faith itself is not in issue, to Finn, "The Fiduciary Principle" in Youdan (ed) Equity, Fiduciaries and Trusts , 10 ff, 1989. On its face it accepts that the parties have several and potentially adverse interests to protect in their relationship and are permitted to do so subject to the limitations imposed by the clause. 256 I have set out what is said to be the basis of the promoters claim at some length for this reason. I have had considerable difficulty in divining precisely what that basis might be. As pleaded, it suggests that the circumstances gave rise to a fiduciary relationship between each of Bell and Sladojevic as promoters of Tiltform Australia on the one hand and the WA investors on the other. The relevant relationships, I would add, were not with Tiltform Australia as such, as is ordinarily the case with promoters of companies: see Tracy v Mandalay Pty Ltd [1953] HCA 9 ; (1953) 88 CLR 215 at 241-242. How the pleaded relationship emerges from the particulars is by no means clear. Presumably its consequence, though, was that Bell and Sladojevic were obliged to act in the interests of the WA investors. 257 In written submissions it was suggested initially that they were promoters "because of the clear benefits to be derived by them from a share take up in [Tiltform Australia]". The decision of the High Court in Tracey v Mandalay Pty Ltd , (esp at 241) was in this relied upon for support by way of asserted factual analogy. Those submissions, though, went on to make the assertion of a fiduciary relationship akin to that of proposed joint venturers: United Dominion Corporation Ltd v Brian Pty Ltd [1985] HCA 49 ; (1985) 157 CLR 1. This joint venture --- which could only be said to be between the WA investors and Bell and Sladojevic if the alleged joint venturers' separate corporate entities (i.e. Tiltform Licensing and Tiltform Australia) were disregarded --- seems to be focussed on Bell's and Sladojevic's obligations as promoters of "the benefit of their (sic) licensed product through Tiltform Australia". I note in passing that no claim is made against Bell and Sladojevic as knowing participants in a breach of duty by Tiltform Licensing. Presumably, in this version of the joint venture, Bell and Sladojevic as fiduciaries were obliged to act in the mutual interest of themselves and the investors within the scope of the proposed venture. 258 In supplementary submissions, the "proposed joint venture" basis continued to be insisted upon, although apparently as an amalgam of the two previous approaches advanced, i.e. they were promoters of Tiltform Australia in the take up of the shares and of the proposed joint venture. The nature of the fiduciary duty owed in this amalgam submission is entirely unclear. Fully informed consent apart, were Bell and Sladojevic obliged to act in the interests of the proposed joint venturers (including themselves) to the exclusion of their own, several personal interests? Or were they obliged to act in the interests of the investors to the exclusion of any personal interest of their own? 259 Because of the difficulties I have in understanding how precisely the promoter fiduciary relationships are said to have been generated and what was the nature of the fiduciary wrongdoing allegedly engaged in in light of the relationships, I will give in relatively short form my own conclusions as to why I consider that there was, in the circumstances, no fiduciary relationship between Bell or Sladojevic and the WA investors. In so doing I have attempted as best I can to take account of the submissions advanced by the applicants. 260 This is not a case which requires any significant elaboration of the basic principles of law governing fiduciary relationships: see generally Meagher, Gummow & Lehane, Equity: Doctrines & Remedies , Ch 5 (4 th ed 2002); and, on proposed joint ventures having fiduciary characteristics, see Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at 571-576. 261 It is sufficient to note for present purposes that (i) the distinguishing characteristic of a fiduciary relationship is that "its essence, or purpose, is to serve exclusively the interests of a person or group of persons" (which, as in the case of a partnership or fiduciary joint venture, can include the fiduciary): see generally Meagher, Gummow & Lehane, at 5-005 ff; (ii) a relationship may be fiduciary in part and non-fiduciary in part: Hospital Products Ltd v United States Surgical Corporation , at 97-98 ff; (iii) insofar as the fiduciary relationship is claimed to be founded on mutual trust and confidence, the circumstances must nonetheless be such that the parties to the relationship can reasonably expect loyalty from the other, i.e. known adversarial interests, the reasonable expectation of self-reliance, etc.) which negative a fiduciary finding: Gibson Motorsport Merchandise Pty Ltd , at [2]-[18]; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 539-541. 262 Turning to the present matter, it is important to emphasise at the outset that the WA investors were not proposing to, and did not, invest in a licence with Tiltform Licensing. They were investing in Tiltform Australia, an entity which the investors knew was to, and did, have exclusive territorial licences from Tiltform Licensing. The advantage they sought to gain from so investing would accrue from Tiltform Australia's successful exploitation of those licences for its own benefit. 263 It was also obvious to all concerned that to the extent that that exploitation was successful, Tiltform Licensing (and those with interests in it) stood in turn to benefit in virtue of the provisions of the licence agreement. In this sense the two companies shared, i.e. had common but several interests, in the prospering of their business relationship. But there was nothing fiduciary at all about that relationship. The licence agreement required considerable cooperation between the parties as well as ongoing trust and confidence in each other. But it was not for that reason fiduciary: cf Gibson Motorsport Merchandise Pty Ltd at [12]-[16]. Such is the commonplace in relational contracts, i.e. contracts which create an ongoing business relationship. Nonetheless there was nothing in the terms of the contract remotely suggesting that the parties were binding themselves in any way to promote "mutual interests". The agreement was designed to serve the several interests of each, and in this it gave Tiltform Licensing considerable powers over Tiltform Australia to protect its own interests. 264 The licence agreements of themselves created no fiduciary relationship as between Tiltform Licensing and Tiltform Australia. This, though, is not the relationship which, by virtue of the agreement "alone", is said to have been fiduciary. It is at this point that the difficulty with the applicants' submission becomes transparent. 265 It was clearly the case that, in their dealings with the WA investors, Bell and Sladojevic acted in the main on behalf of Tiltform Licensing in relation to a prospective investment in its licensee, Tiltform Australia. It was or should have been obvious to the investors that such was the case and that Tiltform Licensing had manifest interests in the making of the proposed investment. It was not necessary for the investors to have read the licence agreements for them to have reason to know that such was the case, although Parker's evidence is that he read it after returning to Perth from the 2 June meeting and he was aware that Tiltform Licensing's approval was necessary for any change in shareholding. The circumstances were redolent of Tiltform Licensing's own interest both in its relationship with Tiltform Australia and in any investment made in Tiltform Australia. To the extent that Bell and Sladojevic acted and were seen to act for Tiltform Licensing no possible foundation existed for characterising Bell and/or Sladojevic's relationship with the WA investors as fiduciary. As would have been apparent to anyone in the position of the WA investors, Bell and Sladojevic were seeking to protect and advance Tiltform Licensing's interests and, as is commonly the case in commercial dealings, they sought positively to encourage the investment in Tiltform Australia, both by enhancing its attractiveness (by, for example, introducing Dawkins to Benson) and by encouraging (through representations) its being made. The latter action was taken for the immediate benefit of Tiltform Australia, though self-interest was writ large in it. 266 In virtue of their positions with Tiltform Licensing both Bell and Sladojevic were, under the licence agreements, armed with the ability to acquire considerable knowledge about Tiltform Australia. Whether or not they possessed such knowledge in fact in purporting to make representations about Tiltform Australia, they were not acting on behalf of, nor were they understood by Parker and Lee to be acting on behalf of, Tiltform Australia. Their representations were made, as I have indicated, in a context in which Tiltform Licensing's interest were manifest and in which they were furthering that company's interests albeit by making representations about Tiltform Australia. 267 The one action they took which was in appearance an action of Tiltform Australia was the passing off of the Tiltform Australia proposal document as Benson's. In so acting Bell and Sladojevic appear, on the evidence, to have assumed a power to act in this matter for Tiltform Australia for an investment relationship. 268 Unsurprisingly given its purpose, Benson and Abraham did not subsequently disown that document. It came to represent a basis for dealings with Tiltform Australia and the WA investors. Those dealings, as I have earlier found, were relevantly to the exclusion of Bell and Sladojevic. Parker and Lee dealt in the matter with Benson and his financial adviser, Simon Abraham. Whatever might be said of the subterfuge, Bell and Sladojevic engaged in on 26 June, it led to a dealing between a formed and functioning company with its own board (i.e. Tiltform Australia) and its arm's length investors who conducted their own due diligence in the matter. There is, in my view, no basis in the circumstances for using the 26 June proposal as a springboard to a promoter-like, fiduciary finding against Bell or Sladojevic. 269 Parker, and through him the other investors, may well not have known that Bell had a shareholding in Tiltform Licensing. That Bell did, though, did not make him a fiduciary. Parker knew Bell and Sladojevic represented Tiltform Licensing; he knew the investors were not investing in that company but in Benson and Abraham's company; as I have found, he made his investment decision without reliance upon Bell or Sladojevic's misrepresentations; and he ought reasonably to have known that Tiltform Licensing stood to benefit from the investment as did those who stood behind it. He was not expecting disinterested conduct from Tiltform Licensing or from Bell or Sladojevic --- although he was entitled to expect that he would not be misled or deceived by them. 270 There is, in my view, no proper basis to support the fiduciary claims. I reject them. I would add for the sake of completeness that while I have had the decisions in Catt v Marac Australia Ltd (1987) 9 NSWLR 639 and Hill v Rose [1990] VR 129 pressed upon me by the applicants, I have found them to be of no real assistance in resolving the present question. As is common where fiduciary relationships are claimed to arise ad hoc, it will be the particular circumstances of the case in question which will ordain the appropriateness or otherwise of a fiduciary finding. It is unnecessary that I comment further on the above two cases: cf Meagher Gummow & Lehane at 5-015. This said, the claims themselves have a much smaller evidentiary compass and occupied a relatively small part of the time taken in the joint proceedings. As I will be making reference in what follows to the evidence and to my findings in Rawley, I should again reiterate that both matters have proceeded on the basis that, insofar as relevant, the evidence in one will be evidence in the other. 274 Of his relationship with Chehade, Sladojevic acknowledged that he met Chehade in 1998; Chehade had prepared financial statements and performed related services for his companies and his family trusts since then; but he did not get along very well with Chehade. It is reasonably apparent that he had no particular regard for Chehade. This said, I am satisfied that, when both the Bell Partners accountancy practice and the Tiltform companies shared offices at the Greenhill Road premises in May 2000, Sladojevic nonetheless shared a deal of information about his companies, their businesses and his expectations, etc with Chehade in the course of the ebb and flow of conversation in an open plan office setting. I will return to this matter later. It is of no little significance. Suffice it to say I do not accept in critical respects his version of events concerning his knowledge of Chehade's investment in Tiltform Australia. 276 Bell engaged Chehade as an accountant in his practice in 1997, Chehade providing the accountancy services and Bell the business advisory services of Bell Partners. Their relationship appears to have been one of mutual liking and respect. Throughout his oral evidence in particular Chehade described his relationship with Bell (as also with Sladojevic) as one of trust. I will return to this when making my findings. 277 In April 2000 Bell and Chehade executed a Memorandum of Understanding as to the future of Bell Partners. In it Bell acknowledged he wished to pursue a continuing involvement with the Tiltform group which was by that time Bell Partners' major client. He agreed to a name change to include Chehade's name and to Chehade becoming a salaried partner. This MoU envisaged that Bell and Chehade were "prepared to commit" to what was agreed "at least for the next three (3) years". Though the timing is contentious, and I will assume for the moment that it was in late July 2000, Bell offered to sell his practice to Chehade for, according to Bell, $200,000 and, later, for $50,000 with vendor finance for the balance. Chehade declined both offers. By August 2000, Bell had joined Tiltform Licensing as a director. Bell sold his practice to a third party in late 2000. It will be necessary later to examine in a little detail the significance of the sale offer in the context of Chehade's decision to make a $500,000 investment in Tiltform Australia. As a matter of convenience, I will hereafter refer to the accountancy practice as Bell Chehade, the business name adopted on 29 June 2000, unless the context otherwise requires differentiation. He held an Associate Diploma in Accounting, and the degree of Bachelor of Business, Banking and Finance (graduating in 1994); he was a Member of the National Institute of Accountants, a Certified Practicing Accountant and a Registered Tax Agent. 280 As the circumstances in which he made his investment in Tiltform Australia are sharply in issue, I will not attempt to précis them here. The one matter I consider warrants emphasis is that since 1998 he has performed accounting services for the Tiltform group of companies which was much the major client of the practice. Consistent with what was said in the Rawley proceedings, I am entitled to assume that most of these have been abandoned. Two additional instances of non-disclosure were relied upon in the Chehade matter. 284 First, there is the claim against Tiltform Licensing (for which no relief is sought) for contraventions of s 52 and s 59(2) of the TP Act (and its State equivalents) and for relief against Bell and Sladojevic personally via s 75B of the TP Act in respect of Tiltform Licensing's contraventions. This must fail for the reasons I gave in the Rawley proceedings, given that the conduct engaged in was in relation to financial services with the consequence that Part V of the TP Act did not apply to it: TP Act , s 51AF ; ASIC Act s 12BA(1) "financial service". Equally, s 995A of the Corporations Law excluded the application of State Fair Trading Acts to dealings in securities. As in Rawley, I permitted a late amendment to the Chehade Statement of Claim so as to allege contraventions of s 995 of the Corporations Law and so as to claim damages under s 1325 of the Corporations Law. 285 As in the Rawley matter, a negligence claim is made against Bell who, it is said, owed a duty of care to Chehade in making representations in relation to his proposed investment in Tiltform Australia. The representation said to have been made negligently, but which was relied upon reasonably, was the same as that founding the misleading or deceptive conduct claim. As I later will shortly indicate, there is no substance at all in this claim. 286 Again, as in Rawley, a claim is made against Bell and Sladojevic as promoters of Tiltform Australia. The breach of fiduciary duty alleged is identical in terms to that in Bell save that the alleged non-disclosure was to Chehade. The reasons I gave in the Rawley matter for dismissing this claim apply with equal force here. I will make no further reference to this claim. I will consider each of the alleged misrepresentations in turn. Before doing so I need to indicate my view of Chehade as a witness. There are additionally six prefatory matters to which I should make particular reference as they inform my ultimate findings. These relate to (i) the respective professional and business relationships of Chehade and Bell and Chehade and Sladojevic; (ii) Chehade's skill and experience; and (iii) the working environment at the Greenhill Road premises which were shared by the Tiltform group and Bell Partners and, from July 2000, Tiltform Australia; (iv) Tripodi's brief employment in the accountancy practice; (v) the timing of Chehade's investment decision; and (vi) Bell's offer to sell his practice to Chehade. In his own case, he is said to be a naïve victim whose answers are believable and compelling. On Sladojevic's case, his evidence is said to be marked by inconsistency and invention and is contrary to the weight of the evidence. 289 I have rejected significant portions of his evidence for a variety of reasons. Much of it, whether or not contrivedly, betrayed no accurate linear sense of when events occurred --- particularly in relation to events critical to these proceedings. This, of itself, rendered a deal of it unreliable. However, I am also satisfied that he has both constructed and reconstructed parts of his evidence in ways advantageous to the case he puts. The documentary evidence, though, has often been against him. I have concluded that there is a degree of reconstruction in his evidence, particularly concerning his dealings with Benson and Bell, which gives reason for pause. Similarly his own version of events is marked by inconsistency. When one adds to all of this his professed lack of recall --- and he invoked this regularly --- I have concluded that his evidence should be treated with real caution, absent independent documentary corroboration. I am satisfied from Bell's evidence and from his conduct towards Chehade that he respected Chehade's competence at least in the finance side of an accountancy practice and that he was prepared to give him a considerable degree of autonomy in that part of the practice. In the MoU of 3 April 2000 Bell acknowledged that he had had "little or no role in the effective running of the taxation/accounting division of the practice since its inception". He acknowledged his appreciation of the role so performed by Chehade. I would interpolate though it is not directly relevant, that Bell was aware that Chehade did accountancy work for his father in what Bell believed were his "various businesses and vast property interests". 291 Chehade did not participate in the provision of consultancy and business advisory services, these being Bell's domain. Bell was well regarded and respected by Chehade who considered he was an extremely experienced and knowledgeable accountant. I am satisfied that Bell, in consequence, possessed the capacity to influence Chehade in at least those matters that fell within the area of Bell's professional competence. This said, I do not consider that the evidence discloses a relationship of professional influence differing significantly from that commonly found between senior and junior members of a profession who have worked closely together. 292 I emphasise the above for this reason. On a number of occasions in his evidence Chehade indicated that he had trust in Bell and Sladojevic and he used that "trust in Robert and Geoff" to justify several instances in which he omitted to make inquiries or otherwise to take reasonable steps to obtain information in relation to the investment. As will become apparent later in these reasons, I am satisfied that Chehade in fact surrendered the exercise of his own judgment to what he perceived to be implicit in the judgments and actions of Bell and Sladojevic. They were not responsible for his so doing and cannot be made so by virtue of the supposed "trust" in them he said he had. Or projections?---No. You were familiar with financial projections or financial forecasts?---Yes. You knew they were an important management tool?---Yes. And very important when considering whether any particular business venture was likely to be successful?---Yes. And one of the important components of such projections are cash flow forecasts?---Yes. But you didn't ask Mr Benson for any such forecasts?---No. And you didn't ask Mr Sladojevic or Mr Bell?---No, I didn't. No, I didn't feel I needed to. I am not satisfied that such is the case, although I am satisfied that he did demonstrate an acquisitiveness unmatched by restraint or judgment. I equally am not satisfied that he is as unsubtle and incapable of engaging in artifice or deceit as it was sought to portray him. 295 Despite Chehade's slight evidence suggesting the contrary, his business relationship with Sladojevic was not in my view accompanied by reciprocal warmth or personal respect. I accept Sladojevic's evidence on his view of Chehade. Bell confirmed this in observing "Robert and Amin didn't get on". This said, I am satisfied that Chehade was impressed by Sladojevic's business --- the moreso given Bell's level of commitment to it (as evidenced in the MoU) --- by his "intimate knowledge" of it and by the opportunity for returns it seemed to hold out. I am also satisfied, as I will indicate below, that his appreciation of the Tiltform group business was more significant than he admitted to in evidence. However, I am not satisfied that he had, or on the evidence had reason to have, trust in Sladojevic. He knew Sladojevic was domineering. He may have considered that Sladojevic could exercise influence in Tiltform Australia. But he gave no reason why he had trust in him to exercise that influence on his (Chehade's) behalf. Here I only wish to emphasise the following. He was a practising accountant with an appropriate University degree. Though he sought to downplay his involvement in the preparation of the financial accounts for Sladojevic's companies, trusts and family --- he said he "supervised the preparation of those" by others --- he clearly had a relatively informed understanding of the Tiltform group in consequence of his professional practice. The evidence is that, to the extent there were separate offices, the inward facing doors and walls (at least) were glass and that, for a period prior to about September, Bell, Chehade and Tripodi shared a common space. Both Benson and Chehade gave evidence of the interchange of information (both designed and overheard) between occupants of the floor. Chehade, for example, accepted there was general talk within the office and there was not a lot of confidentiality between the different businesses. He also observed on several occasions that Sladojevic walked around the office talking about the companies including Tiltform Australia. We would talk about it and that is when he would mention these things about investing, etcetera, etcetera. He would come and have a chat to me. Everything was pretty much open door. We couldn't pass wind without them [i.e. Sladojevic and Bell] knowing what we were doing. I often used to wonder who was running the company. He was not a qualified accountant. On 14 July he was offered employment with Bell Chehade commencing on Monday, 31 July 2000. The offer of the position "Senior Accountant" was, obviously, a mistake on Bell's part (the offer went out under Bell's name). Tripodi accepted on 17 July 2000. Copies of Tripodi's payslips which are in evidence indicate he commenced work on 31 July 2000 and ceased employment with Bell Chehade on 18 August 2000. He then took employment with Tiltform Licensing. The circumstances of his so doing are somewhat controversial. 302 As will be seen, both Bell and Sladojevic gave evidence in which events and actions are assigned dates by reference to Tripodi's employment, variously, with Bell Chehade and with Tiltform Licensing. To foreshadow matters, the timing in each instance bore no relationship to the timing of Tripodi's actual employment with either employer. Tripodi, I would note, was not called to give evidence. The first intimation he received from Chehade of an interest in investing in Tiltform Australia of sufficient seriousness to permit its being included in the company's projections, would seem to have occurred prior to 12 July 2000. As appears in my reasons in the Rawley matter, Tiltform Australia's accountant, Simon Abraham of BDO, produced what I have described as the 12 July BDO projections which included (inter alia) a "capital inflow" sum of $475,000. It was Parker's evidence in the Rawley matter, that at a meeting of 17 July 2000 at which he, Bell, Sladojevic, Lee and Benson were present, Benson identified that sum as being provided by Chehade. I have accepted that evidence. In turn, Bell's diary note of the meeting refers to "$500,000 over and above the WA [investors] to come in" though he disclaimed knowledge of the identity of the investor. A note of his of a phone conversation of the following day with Benson and Lee stated: "$.5m Amin Chehade". 304 Benson's own account of his dealings with Chehade is broadly consonant with what the documents suggest. He said that it was at the instigation of Bell and Sladojevic that he approached Chehade; they (he later said he believed it was Sladojevic) had told him that "Amin was interested in buying into the company"; he then spoke to Chehade but could not recall whether he phoned him; they discussed both investing $500,000 and Chehade's taking a position with Tiltform Australia ("He was looking for a position" as the practice was not going the way he planned); the investment was subject to his being able to raise the funds; and there was a time when he became sure that Chehade was going to invest the whole half million but he could not recall when that was. He had no memory of the figure of $475,000. 305 The above version is also corroborated in part by Parker's evidence that at the meeting with Simon Abraham (the BDO accountant) to discuss revised BDO projections, Abraham was told to reflect introduced capital following 1 July 2000 as being $1.5 million "subject to advice from Benson as to whether or not the remaining $25,000 would be coming from Chehade and if so, the timing of the receipt of those funds. " The 31 July BDO projections refer to a capital inflow in August 2000 of $1,000,000 which, I infer, was a reference to the separate sums of $500,000 to be put in by Chehade and by the WA investors. 306 Chehade's changing versions of his investment differ significantly from Benson's account and has been complicated further by Chehade's emphasis in oral evidence on when he made the "commitment to make the investment". His affidavit version, which is at some variance from his oral evidence, but which has resonances with Benson's, has him meeting with Benson after a telephone call on the previous day (date unspecified); Benson making the offer both of a 15 per cent share in the company for $500,000 and of the position of Financial Controller in the company; and accepting the offer subject to being able to secure a loan to finance the purchase. No date is ascribed to when the offer was accepted but it appears, in the context of his affidavit, to have been in mid to late July 2000. 307 In his cross-examination he placed his first meeting with Benson as occurring at Greenhill Road when Sladojevic organised a meeting between Chehade and Benson to talk about investment in Tiltform Australia, this meeting being in early August. In his evidence-in-chief, in contrast, he agreed he made his commitment to Benson to purchase the shares subject to finance on or about 4 August 2000. He rejected Benson's claims that this commitment was made by about 18 July 2000. He recalled having a phone conversation with Benson concerning investing in the company and taking employment in it as an accountant in July, probably late July. He later moved this time into early August when the sequence of events in his affidavit was referred to. He later said he could not say definitely that he did not have conversations with Benson prior to 17 July 2000 about investing and obtaining employment. This was followed by his agreeing that he possibly did have such conversations with Benson possibly on or before 17 July 2000. He then told Benson he proposed making an investment if he could raise funds, but that he did not commit to anything until he had put the deposit down and subject to raising funds. 308 On 7 August 2000 he paid a deposit of $10,000. He said he realised he might end up forfeiting this sum. Chehade later approached a Dennis Davies of South Australia Business Co-op at Sladojevic's suggestion. This was unsuccessful. In the event he raised almost the entirety of the $500,000 from family members. He paid the purchase price by instalments of $50,000 (on 25 August), $20,000 (on 6 September), $340,000 (on 16 September), $40,000 (on 26 September), $30,000 (on 6 October) and $10,000 (on 11 October). Chehade took up the position of financial controller in Tiltform Australia on 1 September 2000. 309 It is convenient at this point to refer to the evidence of Bell and Sladojevic as to their knowledge of Chehade making his investment. Sladojevic's evidence was that he and Bell learned in about mid-July that Chehade was proposing to invest in Tiltform Australia. Bell was in a room with him when he found out. In his affidavit he said that he and Bell were both told by Tripodi, an employee of Bell Chehade, that Chehade was going to work for Tiltform Australia and had done a deal to invest in that company. This was said to have occurred in early to mid July. I note in passing that Tripodi commenced work with Bell Chehade on 31 July 2000. Sladojevic denied arranging for Chehade to meet Benson. In his affidavit version of the 17 July meeting with Benson, Parker, Lee and Bell, he noted that Benson mentioned $500,000 was coming from Chehade. In oral evidence he disavowed this as "reconstructed". Later in oral evidence he said he had no specific discussion with Bell about Chehade investing in Tiltform Australia although both Benson and Bell told him of this in late July. He had no specific recollection of whether or not Bell was dismissive of the suggestion that Chehade might invest $500,000. So at all times I thought: well, okay, Amin's putting in 50,000 into Tiltform Australia, well you know, that's obviously about all he could afford to put in, and little did I know even though I've referred to a file note dated 18 July which indicates at point 5 'Am. Chehade' with a circle around it, as I say, that was the furtherest thing from my mind that he would be putting in money like that and at no stage during that conversation on that Thursday night did he indicate to me that he was going to be putting in half a million dollars into Tiltform Australia. I only found that out about a month later when he approached me and said: I have put in half a million dollars. I'd already heard a rumour that he was putting a half a million dollars in because Joe Tripodi had already told me that the funding of one of those problem bills in September when Tiltform Australia were struggling with their funding, that money had actually come from Chehade and that's how I knew but Amin Chehade had never approached me and told me that he was putting in half a million dollars. 311 Bell acknowledged in cross-examination that Benson told him of the possibility of Chehade investing in Tiltform Australia but this was "something [he] dismissed immediately as absolute rubbish". He did not approach Chehade about the matter. He could not see the investment as a reality "because Robert and Amin didn't get on". He indicated, though, that he knew Chehade had recently paid cash for his house. He continued to insist that the first he knew of the $500,000 investment was in late September 2000. 312 My findings on this matter can be stated shortly. I am faced with the denials both of Sladojevic and Bell that they did not know of Chehade's investment, in Sladojevic's case, until mid July and, in Bell's case, until late September. I have rejected that evidence. I equally have rejected Sladojevic's evidence that he did not arrange for Chehade to meet Bell. The unstated premise of Chehade's evidence is that he had not expressed any interest in investing in Tiltform Australia until Sladojevic mentioned the investment opportunity. I am not satisfied that such was the case. I am satisfied from Benson's evidence that at least Sladojevic was sufficiently aware of Chehade's potential interest to mention this to Benson. As I will later indicate, I am not satisfied that that interest was enlivened by the representations made by Sladojevic surrounding the "First Misrepresentation", because I am not satisfied that those representations were made as alleged. In this state of affairs, the most reasonable and probable deduction from what is known is that Chehade made his interest in Tiltform Australia apparent in the course of office conversation some time in late June into early July. It is reasonable to infer that both Sladojevic and Bell were aware of this. Their subsequent conduct, especially at the 17 July meeting with the WA investors was consistent with this. 313 Sladojevic's mention of Chehade to Benson led Benson to make an approach to Chehade some time before 12 July 2000, the date of the first BDO projections. That approach may have been by phone. Some time before 17 July --- the date of the meeting of Bell, Sladojevic and Benson with the WA investors which I considered in detail in my reasons in the Rawley proceedings --- Benson offered Chehade both employment in Tiltform Australia and a 15 per cent interest for $500,000. Chehade knew at the time that this price matched that given to the WA investors. He had learned this "just from the office ... it was just spoken about". I equally accept Benson's evidence that it was Chehade who had indicated he was looking for a position. His ready acceptance of Benson's offer of employment supports this. At, or shortly, after that meeting Chehade accepted the offer subject to being able to raise finance. 314 It is unnecessary for present purposes to characterise the effect of the stipulated condition, although I am satisfied that in this context it conditioned the performance not the formation of the contract: see Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571. It is equally unnecessary, given what later occurred, to express a concluded view on the date on which the contract was made. My own view is that it probably was around the time of, but prior to, the 17 July meeting. What is clear is that it was on foot when the deposit of $10,000 was paid on 7 August. Even if that payment was to be regarded strictly as a deposit, the contract's conditional character was spent shortly thereafter when Chehade paid $50,000 on 25 August 2000 and began employment with Tiltform Australia on 1 September 2000. At best by then, it had become an instalment contract and no more. This, I would note, seems to be the submission put on behalf of Sladojevic in relation to the alleged Fifth Misrepresentation. In reaching the above conclusions I have accepted the essence of Benson's evidence. I have rejected much of Chehade's evidence. I do not accept either Bell's or Sladojevic's evidence concerning when and how they respectively became aware of Chehade's investment or decision to invest. In particular I am satisfied that by 17 July 2000 Bell was aware that Chehade had made a commitment to Benson to invest $500,000. 315 To foreshadow matters, my conclusions here have quite some bearing on my findings in relation to the alleged misrepresentations. He said that Sladojevic was by then suggesting to him that he should become a director of Tiltform Licensing. He met with Chehade on 26 July 2000 and then, it seems, offered to sell 90 per cent of the practice to Chehade and/or Tripodi for $200,000. I again note that Tripodi did not start work until 31 July although Bell in oral evidence suggested he must have started earlier. I would also note that there is no evidence that Tripodi was a qualified accountant. There is evidence that he was not. 317 Bell said in cross-examination that Chehade did not say he was not interested in purchasing the practice. He said he would consider the proposal. 318 On 3 August he had a further meeting at which he suggested a variation to his original proposal "to make it more palatable to [Chehade]". This proposal was, apparently, that he pay $50,000 and have vendor finance for the balance. 319 Bell became a director of Tiltform Licensing on 3 August. He was in New Zealand from 7 to 9 August. Letters bearing the date 8 August, but signed by Bell before then, were sent to clients of the practice. These announced the appointments of Chehade as a partner in the business and of Tripodi as Senior Accountant, as well as a change of name to Bell Chehade. Chehade recalled a letter like this being prepared. You wanted to keep them --- because I recall having discussions with you and work was coming in for the beginning of the financial year and telling you: we need to tell them, but you did not want to tell the clients. You kept on mentioning to hold back until you had a buyer, if you actually ever got one, which you eventually did so, no, this went out at the time where you knew you were selling the practice. 320 When Bell returned from New Zealand he said he discovered that Tripodi was working for Tiltform Licensing. Bell said this was because he was offered more money by Sladojevic than he was getting from Bell Chehade. He said he had no knowledge of Tripodi leaving Bell Chehade because Chehade was leaving the partnership. 321 Chehade's evidence was that there was no suggestion when the job offer was made to Tripodi that Bell was going to sell the practice. Later, he said Bell could have spoken about selling "as early as June, July". He said he told Bell he was not interested in buying the whole practice, but only a part of it but Bell said he wanted to sell the whole practice. In his first affidavit Chehade said this offer was made to him at the time Bell became a director of Tiltform Licensing (this occurred in early August 2000). It was at this time that Sladojevic mentioned to me that another Tiltform company, Tiltform Australia Pty Ltd ('Tiltform Australia') needed an accountant and that the position may be available to me, particularly if I were to invest into Tiltform Australia as a shareholder. Chehade said he proposed they could possibly do something together. Tripodi is said to have then indicated that he was going to work for Tiltform Licensing (i.e. with Sladojevic). 323 I have already indicated that Sladojevic's evidence-in-chief was that Tripodi told him in the presence of Bell that Chehade was investing in Tiltform Australia. He gave like evidence of being told by Tripodi in Bell's presence that Chehade was taking employment with Tiltform Australia. As to the latter, he said he then engaged Tripodi because his companies would otherwise be left without someone to be doing the accounts. In cross-examination he enlarged upon this referring to Chehade being in a position of conflict of interest. While I have rejected Sladojevic's evidence that Tripodi told him of Chehade's investment, I am satisfied his evidence of how he learned of Chehade's employment with Tiltform Australia is probably correct. In saying this I am not suggesting Bell was present at that time. 324 I have already found that, at least by 17 July, Bell was aware that Chehade was investing $500,000 in Tiltform Australia. I do not consider the evidence establishes that he was then aware that Chehade had accepted an offer of employment with that company. It is more probable than not that Bell first raised the issue of sale of his practice in a serious way at the 26 July meeting. I am not satisfied that his offer was categorically rejected then as Chehade would seem to suggest. I equally am not satisfied that Chehade had by then informed Bell of his intended move to Tiltform Australia. It is unnecessary to speculate as to why he may not have. Further, I am not satisfied that Bell would not have made his offer, knowing of Chehade's investment. Despite his protestations to the contrary, I consider he had nothing to lose by making the offer given he had determined to sell. I need not speculate about whether he considered there might have been a chance that the Chehade family's "vast property interests" might be deployed in a way beneficial to him. 325 The 8 August letters were prepared prior to Bell's going to New Zealand and probably were sent before he returned. It is unlikely that at the time of their preparation he was aware of Chehade's intention. The most probable inference to be drawn from what is known is that some time in early August (probably after Bell's revised offer to Chehade, Chehade told Tripodi of his move and that this in turn resulted in Tripodi telling Sladojevic). Whether Bell was with Sladojevic when this occurred is a matter about which there must be doubt. I am prepared though, to infer that Sladojevic would have explained to Bell why Tripodi was being engaged by him. I am not, on the evidence before me, prepared to accept that Tripodi was already working with (i.e. was on the payroll of) Tiltform Licensing when Bell returned from New Zealand. I reject Chehade's version of his conversation with Tripodi. I consider it to be an invention. 327 In written submissions, Chehade's legal representatives have sought to package this sequence of events as "another of Sladojevic's little strategies". I have referred to "Sladojevic's deceptive strategies" in the Rawley matter and will not reiterate what I have there said. I simply do not accept there was such a strategy here nor I do not accept that representations were made as alleged. 328 I have already found that Benson approached Chehade some time prior to 12 July 2000 as a result of Sladojevic mentioning to him that Chehade had an interest in investing in Tiltform Australia. I have rejected Sladojevic's evidence to the contrary. I have also found that it was Chehade who indicated he was looking for a position. I have further found that by 17 July 2000 Chehade was aware from office conversation that the WA investors were acquiring 15 per cent of the company for $500,000. 329 These findings are not necessarily inconsistent with the making of the alleged representations, but neither are they probative of them. While I have rejected much of Sladojevic's evidence and have found him to have, on occasion, engaged in deceptive strategic behaviour, I am not satisfied that he so acted in this matter or that his evidence concerning it is wholly to be rejected. 330 I am not satisfied that there was in early to mid July 2000 such an immediate and pressing need for him to support Tiltform Australia or such a clear personal advantage to be won by Sladojevic as to lead him to contrive a stratagem to induce Chehade to make an investment in Tiltform Australia --- the more so given, as I later will indicate, Chehade's infatuation with investing in any event. It was, after all, around this time that John Dawkins (of whom there were clearly strong expectations) was offered his position as chairman of Tiltform Australia. 331 I do not regard the alleged first misrepresentation (relating to working capital and cash flow etc) to be one Sladojevic was likely to make. It had a level of specificity about financial matters which the evidence more generally suggests was not characteristic of him. Equally, and unlike his outburst at the 17 July 2000 meeting with the WA investors, there was no apparent need to make this type of representation. The terms of the representation themselves invite suspicion of recent invention in light of what subsequently transpired. 332 Put at its highest, it was probably from office conversation that Sladojevic and Bell became aware of Chehade's interest in investing. The evidence suggests there was a deal of information sharing about, and exchanges concerning, the Tiltform business (including that of Tiltform Australia once formed) and that Sladojevic, given his enthusiasm for his business and its future, contributed significantly both to what Chehade came to know of the business and to Chehade's own interest in participating in the venture. As Chehade said: "[Sladojevic] would be forever walking around the office and explaining how well it is going to do. " It may well be the case that Sladojevic told Chehade he would mention his interest to Benson. I would note in passing that in early July Benson had just moved into the Greenhill Road premises and was previously unknown to Chehade. What I do not accept is that Sladojevic spoke to Chehade in anything like the terms alleged. I consider it likely that the alleged representations are the product, in part, of invention and, in part, of reconstruction of a course of conversations quite unrelated to the specific question of Chehade's possible investment in Tiltform Australia. 333 In any event, as I will indicate below, Chehade made his investment for reasons unconnected with the representations alleged. 335 Chehade's evidence of this matter is that Benson by telephone first, and then in person of the following day, discussed the "Investment Opportunity" and employment, an offer being made to Chehade on the latter occasion. As I have indicated that opportunity was accepted around the time of, but prior to, 17 July meeting. I asked Bell what he thought of Tiltform Australia and the Investment Opportunity, the details of which I explained to him. Bell said to me that I would be 'a very lucky man' if I were to invest in Tiltform Australia. in late September 2000). I have found that, by 17 July 2000, Bell was aware that Chehade had made a commitment to Benson to invest such a sum. If this meeting ever occurred, it had to have happened prior to when Benson's offer was accepted. 337 Chehade's case, as I understand it, is that at the relevant time Bell was familiar with Tiltform Australia's fundraising effort. He knew what money had been put in by Abrahams and Benson which was considerably less for a far greater stake in the company (apparently 70%). He also knew that only the WA investors were lined up to invest in the company. He also knew how much of the Western Australian money would be needed to pay the balance of licence fees payable at that time to Tiltform Licensing (including the WA licence) and to pay out Barone. He knew there was little left to fund any roll out and he knew how much was required because he had assisted to prepare the disclosure documents given to potential licensees. Far from Chehade being a lucky man it was Tiltform Australia, and through it Sladojevic and Bell, who would be lucky if Chehade decided to invest. It was reprehensible, it is said, that as Chehade's employer and friend he did not caution him. 338 Given his evidence as to when he learned of Chehade's investment, Bell, necessarily, denied having the above meeting. 339 For my own part, I am not satisfied that it ever occurred. I have already referred to Chehade's unreliability as a witness. I am not satisfied that this alleged meeting ever occurred. I have not accepted that Sladojevic provided Chehade with an "investment opportunity". If Chehade and Bell had conversations about possible investment in Tiltform Australia --- and I do not discountenance the possibility both that such may have occurred, given the office environment, even if only at a general level and that favourable comments about the company's potential may have been ventured --- I consider it unlikely that it related to this specific "investment opportunity". I do not accept, as I will indicate when considering the issue of "causation" below, that Chehade would have looked to Bell for advice or reassurance. He simply wanted to be part of the 'Tiltform action' with its prospects of profit. At best, this alleged misrepresentation might be a construction Chehade now seeks to place on comments Bell may have made about Tiltform Australia in general conversation. It is unnecessary for me to speculate about that. 340 I do not find that the second misrepresentation has been made out. I will not repeat what was said there. Nonetheless, as I will later indicate, the letter had no operative significance. Chehade had probably paid the $10,000 deposit before he received it. 344 I am of the view that, if such a representation was made, it could have no operative significance in the proceedings. Chehade's circa 17 July 2000 contract with Tiltform Australia was by 16 September unconditional and binding and he was by then contractually obliged to pay the outstanding $420,000. I will nonetheless deal with the representation alleged. I would note, though, that the submissions made on it are quite perfunctory even by the standards of undue brevity otherwise displayed in the Chehade submissions. Sladojevic took me to the meeting room, where he proceeded to draw on the whiteboard a diagram which, he said, depicted how funds invested in Tiltform Investment Co (formerly known as Tiltform Capital Ltd) would be used for the purchase of materials for the national roll out of the Tiltform System by Tiltform Australia. I have annexed a copy of it: see Sched 3. It was in fact a photocopy of a thermal paper printout from the whiteboard, the photocopy having been inscribed (though to no named person) by Sladojevic. He went on in his affidavit to say that he invested the remaining $420,000 after receiving the above explanation, together with Sladojevic's assurance that these were "people lining up to invest" (these seem to have been made on other occasions, though those occasions are not the subjects of the pleading) and Bell's "very lucky man" comment. 347 Chehade's oral evidence was insistent as to his having sought the funding explanation, but was generally unsatisfactory. The following are representative instances of his evidence. The 16 th of September?---Yes. Are you saying that at that meeting Sladojevic explained to you how the roll out was to be funded?---He drew the diagram and very briefly and I guess in simple terms, explained that it was going to be funded by him or his company, the licensor and it was --- the materials were going to be funded by the licensor. Is that the first time that he told you how it was going to be funded?---No. When was the first time?---Again, there was --- while we were in the offices, from about June/July, there was many discussions. Nothing specific in regards to meetings but we were in the same office and there was --- I would walk into Robert's room just to have a chat to him about general things. We would talk about it and that is when he would mention these things about investing, etcetera, etcetera. He would come and have a chat to me. Everything was pretty much open door. Mr Chehade, I suggest to you that you are making that up?---No. You asked him how funding was going to work?---How the rollout was going to happen in conjunction with the funding, yes. I guess my aim of the meeting was just to get reconfirmation that, yes, the licensing or the tiltform, Robert was going to fund the rollout as indicated to me, as was my understanding. As indicated to you by whom?---By Robert. I suggest he had never indicated to you that he was going to arrange funding for the rollout?---Yes, he did. When?---He did that morning I had the meeting and he did prior to that, prior to me investing. Prior to the 16, when do you say Robert indicated to you that he was in some way to fund the rollout?---Before --- I can't recall when. It was a period of time over, you know, a few weeks where --- as you can appreciate we were in the same offices, we're walking past each other, we're talking, there's nothing, I guess, there's no segregation there so we would always be having chats and talks and that was one of my discussions, knowing I was going to invest and I guess initially understanding how it was going to work and Robert explaining that there was --- I also knew of the formwork system and Robert explained how we were going to --- the intention was to roll it out Australia-wide. Well, when do you say he expressly discussed that with you?---I can't recall specifically when. It was over a period. We would have just general chats. It wasn't specific meetings, just general talk within the office. Well, is this not the reality? You were aware from conversations which occurred in the office that Tiltform Australia was proposing to roll out in all states as soon as practicable?---I was aware of that, yes. Also to roll out in New Zealand?---Yes, New Zealand was included. I suggest to you that you had assumed that there was sufficient funding in Tiltform Australia for the roll out to occur?---No. I assumed there was sufficient funding in Tiltform Australia for everything but the roll out, the day to day operations, everything but the roll out. The manufacturing the formwork was all going to be funded by Tiltform Licensing. 349 Sladojevic denies seeing Chehade at all on 16 September. He was at the office at about 8.30 am for a meeting with Dennis Davis from SABC and Bell. The meeting lasted for about half an hour. He later spoke to Tripodi and left about 10 am. The diagram was left on the whiteboard for the following week continuing discussions and changed from time to time over that period. The diagram was concerned with setting up a finance company for myself and Bell to run side by side Tiltform Licensing, which would be used by Tiltform Licensing to raise funds and provide capital to Licensees. (This company was ultimately incorporated and named 'Tiltform Capital Pty Ltd' ...). Davies had advised myself and Bell that it would be beneficial for Tiltform Technologies to acquire a stake in its head licensee company at this would (sic) assist in the back door listing of Tiltform Technologies because it would show to investors that we had faith in the Technology. The diagram was not, as alleged in Chehade's affidavit, drawn to explain how the funding for Tiltform Australia would work. Document 268 , is a true copy of the whiteboard diagram. Early during the following week, I added to the whiteboard diagram, the words 'Compliments from: "The Loudmouth, Shithead, Unprofessional Neanderthal". I wrote this as Parker and Lee had previously called me such things and I sent the diagram to them to show how this 'neanderthal' was going to help organise funding for Tiltform Australia. The diagram was not prepared for Chehade's benefit and did not involve him or his investment. 351 In his oral evidence Sladojevic indicated that some of the handwriting on the document as printed out was Davies; he photocopied the printout immediately after the meeting and then inscribed it as he intended to give it to Parker; he denied giving it to Chehade; and he gave it to Parker at a meeting on 20 September. Sladojevic gave a relatively detailed explanation of the diagram. It was part of a sequence of diagrams created over several weeks. This particular one was conceptual in character. The principal companies were yet to be formed. This here is phase one of that, in that first graph, to establish an investment company as a part of a group, and how we would first raise moneys into that investment company, and this diagram depicts that we were going to use licence sales from international licences to generate income into Tiltform International, which didn't even exist at the time, which is a company we were looking at floating. That would have a finance agreement with the investment company as such, which was at that stage just a hypothetical, generic name called Tiltform --- as you can see, in someone else's handwriting next to it --- Investment Company. So that investment company there would then have a licence agreement --- a formal agreement with Tiltform International so they did have security over the funds. The money from there would be passed to Tiltform Manufacturing which in turn would then provide the equivalent amount of value of formwork to the licensee. This was done so that the funds would only be used for formwork, not other purposes, and that way we have security over the material and the licence itself. I would note that Davies was not called to give evidence. 353 For my own part, I accept Sladojevic's evidence as to the provenance of the photocopied document and his explanation of it. Such evidence as there is of the Tiltform group of companies would seem to confirm that the principal entities referred to in the diagram were not yet formed. For this reason, if no other, the diagrammatic representation seems a wholly inappropriate vehicle to explain the funding of the rollout by Tiltform Australia. 354 Given Chehade's obvious indifference to making inquiries as to the financial circumstances of Tiltform Australia prior to his "committing" to the investment, I find it quite improbable that at this late date he made this particular inquiry, the more so given his oral evidence (which I do not accept) that Sladojevic had previously told him how the rollout was to be funded ("there was many discussions"). While there is no obvious explanation of how Chehade came to have the inscribed photocopy of the diagram, I accept Sladojevic's evidence that it was produced for Parker (it reflected the sometimes less than tasteful communications he had with Parker) and that he did not give it to Chehade. 355 Because I am not satisfied that the alleged meeting ever took place, I do not accept that the pleaded representations were made as alleged. There has been no attempt in submissions, oral or written, to explain why these non-disclosures were actionable in Chehade's case. All that the combined written submission does is to make the uncontroversial but unhelpful comment that silence may constitute misleading or deceptive conduct. Unsurprisingly I do not intend to deal in detail with these allegations both because of my findings on the alleged misrepresentations but also because, in light of the fact that most of the allegations were abandoned in the Rawley matter, I am entitled to assume that the same allegations have been abandoned in the present matters. 357 In the Rawley matter I indicated that the question whether conduct in a given instance is proscribed by s 52/s995 is to be determined having regard to all the relevant circumstances. Silence can render conduct misleading or deceptive if in all the circumstance the party complaining of the non-disclosure was reasonably entitled to expect that if the matters in question existed, had occurred, or were contemplated, they would be disclosed: see Hughes Aircraft Systems International at 198-199. 358 Seemingly the "duty to disclose" in Chehade's case was founded in his "trust in Robert and Geoff". I have earlier commented on that trust. I would simply reiterate that to have trust in another person for whatever reason (be it reasonable or fanciful) does not as of course result in the imposition of an obligation on that other to act in accordance with the dictates of that trust. If such trust is to have any significance at all in a particular matter (I exclude from this relationships of undue influence), there must ordinarily be reason in the relationship of the parties either in that matter or arising from past or present dealings that properly could give rise in the circumstances to the expectation that the disclosure of the information in question would be made if it was known to the trusted party. 359 The short answer to the Chehade case is that neither Bell nor Sladojevic on my findings so conducted themselves in relation to Chehade's investment decision that they could properly be expected to disclose information to Chehade. As I will indicate below, I am satisfied Chehade did it his own way. He was the author of his own harm. His trust may have been in Bell and Chehade making the investment a profitable one given their commitment to the Tiltform enterprise and its success. That was not a trust that could author a liability of the type claimed here. 360 I should add that the professional respect Chehade had for Bell may have provided some basis for having the requisite trust in Bell in respect of a particular dealing, if Bell had sufficiently intruded himself into that dealing. On the evidence and my findings I am not satisfied that he did. It is unsurprising that Chehade gave little by way of oral evidence of Bell's involvement in his investment. 361 I should also indicate that complaint has been made in Chehade's "Promoter Claims" of non-disclosures by Bell and Sladojevic of all of the instances relied upon for the s 995 claims. I simply note here, as I earlier foreshadowed, that there was no proper basis for these claims in the Rawley matter. The position in the Chehade case is even less tenable. The first relates to the 7 August letter which, as I have found, contained two misrepresentations. The second relates more generally to Chehade's bases for making his investment. The Chehade Statement of Claim does not allege that Chehade ever received the letter, let alone when he received it. In his affidavit, Chehade stated that Benson "gave him a copy". Benson went to New Zealand on 7 August; and was in transit that day, though had telephone and email communications with Sladojevic. 364 In his oral evidence, when asked whether Benson gave, or emailed, him the letter, Chehade said it was forwarded to him by email. He could not recall whether there was an accompanying letter. And was the effect of the conversation that you better make up your mind as to whether you were going to be making the investment or not?---It was along the lines of, Robert has sent me an email and then he is not happy with the delays at which at that point I hadn't even had the funding. I said, well I --- you know, there is nothing I can do at this point. I will do my best. And then I read the email. And as a result of reading the email did you decide that you either better invest or lose the opportunity?---Yes. And rather than lose the opportunity, you put in your $10,000?---Yes, that is correct. Without making further inquiries?---Yes, that is correct. Without even knowing whether the Western Australian group were going to come up with the money?---Yes, that is correct. I had made enough inquiries with Geoff and Robert to convince myself that the investment was fine. It was forwarded to Lee in Western Australia as an attachment to an email sent by Benson to him that email being dated "Monday, 7 August 2000 20:20". Chehade had as an attachment to his first affidavit, a copy of Sladojevic's email. It was not accompanied by any covering letter. Nor did it otherwise indicate that it had been forwarded by Benson. 366 Chehade paid his $10,000 to Tiltform Australia's bank account directly by cheque on 7 August 2000. Into the account of Tiltform Australia?---Yes. Either on that day or a day or so before, did you have a conversation with Benson and tell him that you were going to put that $10,000 in?---Yes, from what I can recall. Yes. Tell us about that conversation, what was said?---I mentioned that I could put a deposit down or pay --- I can't remember exactly what I mentioned but I mentioned the fact that I had to get the funding and I would try to source the funding and I put a deposit down to secure the investment, subject to me getting the funding. Was that at his request?---No. 367 Benson's evidence is that he forwarded the email to Chehade. He could not recall when Chehade paid his $10,000. Sladojevic's evidence was that he sent the email to Benson "late evening" on 7 August. 368 The Chehade submissions do not seek to engage in any way with the evidentiary issues raised by Sladojevic's. It is merely said that I should have no hesitation in finding that Chehade received the letter as Sladojevic intended and that it clearly had an impact on him as on the same day he put down the deposit of $10,000 "to confirm his intention to proceed". 369 As to Chehade's receipt of the letter, I am satisfied, though with some misgivings, that the letter was sent to him by Benson. As to the alleged influence on him of it, I am not so satisfied. In particular I am not satisfied on balance that the $10,000 deposit made on 7 August was made after Chehade received the forwarded email from Benson. Given that (a) Benson went to New Zealand on that day from Sydney; (b) Sladojevic sent the email to him "late evening"; and (c) Benson's email to Lee was in turn an evening email --- it would be appropriate to infer that the email forwarded to Chehade was sent at around the same time as that to Lee. If such was the case, even accepting that Chehade spoke to Benson after he received it (which I do not), it is improbable that the deposit was made after his receipt of the letter and was influenced by it. In the circumstances I cannot be satisfied that the two events --- the making of the deposit and the receipt of the letter --- were not simply unrelated events. Further, I consider it likely that, before 7 August, Chehade had informed Benson that he would put a deposit down to secure the investment. Chehade gave evidence as to such a conversation on or before 7 August. I consider there must be a real question as to whether it occurred on 7 August given Benson's travels on that day and the issue of timing to which I have referred. 370 Despite Chehade's evidence to the contrary, I am satisfied that he placed no reliance on the 7 August letter in making his deposit and that it was not causative of any loss. 371 I have dealt with the above on the basis that Chehade made his commitment on 7 August. As I earlier indicated, I am satisfied he had contracted with Tiltform Australia subject to a performance condition probably prior to 17 July 2000. 372 My conclusion above is fatal to Chehade's s 995 case which must in consequence be dismissed. I intend to do so shortly because I do not consider that any of the wrongdoing he alleges in the Corporations Law and negligence claims was causative of the loss he suffered by the failure of his investment in Tiltform Australia. 374 The most probable explanation of his investment on the evidence I have heard is that, as a consequence of what he already knew about the Tiltform group, and because of the enthusiasm and expectation generated in his workplace about the prospects of the overall Tiltform venture, he desired to participate in that enterprise. He was impressed by Sladojevic's knowledge of, and enthusiasm for, his business and its prospects. He was comforted and encouraged by Bell's growing commitment to the Tiltform group. And he expected an excellent return on the investment. He conducted no due diligence in the fashion of Parker for the WA investors. He sought no information. He invested blindly, enthusiastically, relying on Sladojevic and Bell to deliver. He was the author of his own harm. All I need say of it in light of my findings relating to Bell's relationship with Chehade in the matter of the investment decision is that it was incapable of giving rise to a duty of care. Bell owed no obligation to Chehade in respect of his investment. I am not satisfied in any event that he made to Chehade what has been called the Second Misrepresentation. And, as I have indicated above, I consider Chehade was the author of his own harm. Bell was notified of the Rawley and Chehade claims on 27/28 June 2001. He notified OAMPS of these in early July. He was informed by OAMPS on 25 July that CGU declined to indemnify him and had cancelled the policy on 15 June for non-payment of the premium. 379 In his cross-claim he contests the validity of that cancellation; he claims various breaches of the terms of his policy; he alleges an infringement of s 52 of the TP Act in consequence of his expectation of notice before cancellation; and he seeks a declaration that he is entitled to be indemnified for any liability to the Rawley applicants and to Chehade. Damages and other orders are also sought. 380 It is unnecessary to outline his claims against OAMPS which have been settled, other than to note that they allege breach of contract, negligence and an alleged contravention of s 52 of the TP Act and that they relate generally to the circumstances of his policy's cancellation. 381 CGU's defence is multi-layered. 5.4.2 The Cross claimant failed to pay the full amount of the Gross Premium to the first cross respondent by 8 June 2001 and accordingly the cross claimant is not entitled to any indemnity under the Policy. The above, in my view, is a complete answer to the cross-claim. The CGU policy was arranged through OAMPS as Bell's agent. The full amount of the premium was $3,461.70. CGU accepted that in consequence of the provisions of ss 14 and 27 of the Insurance (Agents and Brokers) Act 1984 (Cth) --- it is unnecessary here to refer to their terms --- the premium was payable within 90 days of the inception of the cover on 28 February 2001. 384 Bell had arranged with a Mr Milford of OAMPS to pay the premium in three equal monthly instalments payable at the end of March, April and May 2001. The March and April instalments were paid to OAMPS. The third instalment was not paid within the 90 days --- i.e. by 29 May 2001. 385 On 8 June 2001 a Mr Partridge, a senior underwriter with CGU, authorised that a letter and a facsimile be sent to OAMPS c/- Milford by way of notice of cancellation of the policy. Having referred to Bell's non-payment of the premium, each stated (inter alia) that if the premium was not received within seven days or some prior arrangement has been agreed, the policy would be cancelled. 386 Having received the facsimile on 8 June 2001, Milford advised Bell on 15 June by telephone that final payment of the premium was required immediately. On 18 June 2001 Milford sent a facsimile to CGU advising that Bell had already paid $2,311.70 of the premium and would pay the balance in a few days. It was requested that the policy be maintained pending payment. On 20 June OAMPS sent a further letter to CGU indicating it was continuing its efforts to collect the outstanding premium. This was received on 26 June. CGU responded on that day indicating that "cover will not be held" but "a new quote could be arranged" once payment had been received. 387 On 27/28 June 2001 Bell received notification of the claims in the Rawley and Chehade matters from their legal advisers. It is Bell's evidence that he then telephoned OAMPS and made arrangements for payment of the outstanding instalment of $1,150.00 by means of a payment authority given OAMPS. On 3 July, and by facsimile on 4 July, he sent OAMPS written notification of the claims. On 5 July Bell paid the final premium instalment to OAMPS. On 16 July 2001 Milford sent Bell' s 4 July facsimile to CGU notifying the claims. 388 On 17 July 2001, Partridge telephoned Milford and told him Bell's policy had been cancelled for non-payment. Partridge further indicated he need not respond to Milford's request to extend the cover made in his 18 June facsimile. On 19 July 2001 CGU returned Bell's claim documents to Milford given that the policy had been cancelled. On 25 July 2001 Milford advised Bell of this. His submission, in other words, appears to be founded on those provisions in Part VII of the Insurance Contracts Act 1984 (Cth) dealing with cancellation of a policy. 390 It is the case that CGU's contemporary correspondence with OAMPS referred to "cancellation" of the policy for non-payment of premium. Its defence, likewise, pleaded cancellation as one of its grounds of defence. That ground, though, has not been pursued. 391 The ground of defence presently under consideration is concerned, not with cancellation of the policy for non-payment, but with the cover to be provided by the policy not being operative by reason of non-payment at the times the Rawley and Chehade claims were notified to Bell in late June. This distinction is reflected clearly in the language of the Policy itself. 392 I have already referred to cll 2.1 and 2.5 of the Policy which link the provision of the cover to full payment of the policy, cl 2.5 providing that if full payment of the gross premium is not made, "there is no cover". By way of contrast, cl 11.1(a)(v) of the Policy acknowledges the insurer's right to cancel the policy under s 60 of the Insurance Contracts Act where (inter alia) the insured "failed to pay the premium for this policy". This distinction between what I will call "cessation of cover" on the one hand and cancellation of the policy on the other is recognised explicitly in the Act in the manner in which it regulates instalment contracts of general insurance: see s 39 and s 62; and see generally Waterman v Gerling Australia Insurance Co Pty Ltd [2005] NSWSC 1066 ; (2005) 194 FLR 419; Sutton, Insurance Law in Australia , 7.42 (3 rd ed 1999). 393 It is a question of construction of the policy, admittedly under the shadow of the Insurance Contracts Act , as to whether in the circumstances Mr Bell had the cover provided by the CGU at the time of notification of the claims, i.e. 27/28 June 2001. Apart from recognising the difference between cessation of cover and cancellation, the Act does not apply to or regulate directly provisions such as cl 2.5. On its face that sub-clause is a self-executing one. Once the contingency on which it is premised occurs, the cover ceases. The cover may later be revived by the making of payment in full, assuming an election to cancel for non-payment had not by then been made. Unless and until that occurred, there would be no cover notwithstanding that the Policy itself may remain on foot. Far from throwing any doubt on this construction the policy itself supports it. 394 I have not considered it necessary to give detailed consideration to the principles applied in the construction of contracts of insurance. These have recently been essayed by Brereton J in Waterman's case. For my own part, I respectfully agree with his Honour's conclusion in that case. It deals with the very issue raised here though with a clause not quite as unmistakeably explicit as here. I would merely wish to emphasise that while I well understand that an automatic cessation of cover might have the same undesirable policy effects as the Australian Law Reform Commission identified in relation to automatic cancellation: see ALRC Report 20 Insurance Contracts , 1982 [246]-[247], I agree with Brereton J that there is nothing in the Insurance Contracts Act , that Report and the now accepted principles of interpretation of contracts: see e.g. Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd (2005) 223 ALR 560 at [71] ff; affd [2006] FCAFC 144 ; (2006) 156 FCR 1; that would permit the torturing of the clear and coherent terms and text of a contract so as to effectuate that policy in some way. That is a matter for the legislature to address. 395 Accordingly, I am satisfied that there was no insurance cover on 27/28 June 2001; that CGU's defence has been made out; and that the cross-claims must be dismissed with costs. 396 I do not intend to consider the other defences raised by CGU, given that the only live issue between CGU and Bell is costs (having regard to my findings in the Rawley and Chehade matters). However, I should indicate this much. Those defences called into question (i) whether Bell's actions giving rise to the claims against him arose from the conduct of the business planning consultancy covered by the Policy, it being contended that he was acting in the management of Tiltform Licensing by June and July 2000; (ii) whether he was relevantly acting as an "officer of Tiltform Australia and so subject to an express exclusion of the Policy"; (iii) whether Bell's conduct fell within the "unintentional dishonest" acts or omissions exception to the Policy; (iv) whether the policy was voidable under s 28 of the Insurance Contracts Act on account of fraudulent representations contained in the proposal for insurance, or else CGU would have been entitled to reduce its liability to nil. I am of the view in respect of each of these that CGU had a reasonably arguable defence on the material before me. Company set up as national licensee to hire out Tiltform formwork system. Company went into liquidation in April 2001. Sladojevic sole shareholder following resignation of Vinet. Bell given 5% shareholding of company in September 1999. Bell appointed Director in August 2000. Hire business sold to Dino Pietrobon in March 1999. Continued to hire formwork from Tiltform Concrete Systems SA/Tiltform Australia until some time in early to mid-2000. Company allegedly involved in breach of Tiltform patent in early August 2000. Taken over by Tiltform Australia in May 2000. Firm became business adviser and accountants for Tiltform group of companies from 1998. Name of firm changed in April 2000 to Bell Chehade following appointment of Chehade as salaried partner. Components then supplied to licensees of the formwork. Bell, Benson and Sladojevic all Directors as at December 2000. Company owned all of the shares in the "licensor" group of companies, said to be, Tiltform Management, Tiltform Technologies, Tiltform Manufacturing, Tiltform Capital, Tiltform Unit Trust, Tiltform and Tiltform Licensing. Company hired formwork to Icon Group who then proposed to invest in the company. Eventually taken over by Tiltform Australia. Company initially hired Tiltform system from Tiltform WA but ultimately sought to acquire the licence. Is an investor, unit holder and beneficiary under the trust. Simon Abraham Independent accountant for Tiltform Australia. Joe Barone Investor in Tiltform Concrete Systems (WA). Geoffrey Bell Sole member of Bell Partners accounting and consultancy practice. Director of Tiltform Licensing from August 2000. Business adviser to Robert Sladojevic and Tiltform Group from mid-1999 onwards. 5% shareholder in Tiltform Licensing from September 1999. Nigel Benson Managing director of Tiltform Australia from May 2000 --- April 2001. At the time of Tiltform Australia's incorporation, was its sole shareholder and director. Amin Chehade Employed by Bell Partners in 1997 and appointed salaried partner in July 2000. Practicing accountant involved in accounts for Tiltform group. Invested in Tiltform Australia in mid-2000. Appointed financial controller of Tiltform Australia in September 2000 and a director in March 2001. John Dawkins Chairman of Tiltform Australia from mid-2000 onwards. Appointment never formally recognized. Peter Ilic Director of Tiltform Concrete Systems (WA). Involved in negotiations for sale of shareholding to Tiltform Australia in Perth during late June 2000. Darren Jennings Investor in Tiltform Concrete Systems (WA). Gavin Lee Director of Icon Group and supervised provision of marketing and architectural services. Worked as General Manager of Tiltform Australia from August 2000. Appointed Director of Tiltform Australia on 4 September 2000. Joint trustee of the Tiltform Unit Trust with Gregory Parker. Andrew Lloyd Financial adviser to Nigel Benson during initial negotiations for Tiltform Australia. Provided some finance for deposit on licence agreement. Ultimately replaced by Ben Abrahams. Joe Murabito Director of Icon Group. Joined Icon because of expertise in concreting and manages large tilt-up projects for the company. Recommended use of Tiltform Technology to Icon and involved in meeting in Adelaide regarding investment into Tiltform WA, and meeting in WA regarding investment into Tiltform Australia. Renato Palmiero Director of Icon Group. Oversaw all construction projects undertaken by Icon. Gregory Parker Independent accountant for Icon Group. Provided financial advice to Icon Group directors relating to investment in Tiltform WA and then Tiltform Australia. Appointed director of Tiltform Australia in September 2000. Joint trustee of the Tiltform Unit Trust with Gavin Lee. Gino Pietrobon Purchased panel manufacturing business from AR Tiltwall Services to become Tiltwall Services. General Manager of that company from September 1999. Company involved in alleged patent breaches of Tiltform technology in August 2000. Robert Sladojevic Developed concrete "tilt-up" system. Director and/or shareholder of each company in Tiltform Group with the exception of Tiltform Australia. Richard Solomon Legal adviser to Tiltform Licensing group at time of proposed investment by WA investors in Tiltform Australia. Alex Vinet Helped develop the titlform technology with Sladojevic. Former director/shareholder of Tiltform Group of companies until late 1999. Sold final shareholdings in late 2000.

applicant investors in a failed start-up company claim to have been induced to invest by conduct in contravention of ss 52 and 59 of the trade practices act 1974 (cth), the fair trading act 1987 (sa) and the fair trading act 1987 (wa) claims which involved investments in securities precluded by s 51af of the trade practices act 1974 (cth) and s 995a of the corporations law investors claim to have been induced to invest by conduct in contravention of s 995 of the corporations law substantially the same claim as under the trade practices act 1974 (cth) instances of misleading or deceptive conduct established conduct did not induce the applicants to invest or was inconsequential duty of care claimed to be owed by accountant representations pleaded as breaching this duty were not relied upon by the applicants fiduciary duty claimed to exist as between licensor and licensee or as promoters alleged non-disclosure no fiduciary relationship cross-claim made by insured against insurer clause within the policy that if full payment of the premium was not made then there would be no cover late payment no insurance cover at the relevant time misleading or deceptive conduct corporations law negligence fiduciary law insurance

The applicants pay any costs of the respondents thrown away by reason of the late commencement of the trial of the action. Delays in the completion of certain pre-trial steps led the respondents to submit, at a directions hearing on Friday, 9 June 2006, that they were unlikely to be ready to commence on the following Monday. This was attributed to various defaults and delays on the part of the applicants which, it was said, prejudiced the respondents' preparation for trial. In the event I ordered that the trial of the action be relisted to commence at 9.30am on Tuesday 13 June 2006. This was on the basis that evidence of a particular witness for the applicants, Mr K Aua, would be taken on that day and the trial thereafter adjourned to commence with the applicants' opening on Wednesday, 14 June 2006. The applicants were also directed to deliver their written opening, dramatis personae and chronology to the respondents and the Court by close of business on 9 June 2006. 2 The trial commenced on Tuesday, 13 June 2006 at 9.30am with the evidence of Mr Aua. Mr Aua's evidence was taken from 9.30am to approximately 11.50am. Submissions followed in relation to the proposed opening, particulars of damages, the order of witnesses, and the provision of a damages schedule. 3 The respondents contend that the delay in the commencement of the trial was the fault of the applicants and that they should have an order for costs thrown away by reason of the late start and an order that the costs be paid forthwith. The respondents submit that they have the limited benefit of security for costs ordered earlier in these proceedings and that that security should not be eroded by further costs incurred on account of delays for which they are not to blame. 4 The respondents rely upon an affidavit which sets out the various defaults said to have led to the late commencement of the trial. The applicants have filed an affidavit in reply. Each of the affidavits is sworn by a solicitor for the respective party. 5 I do not propose to canvass each of the matters referred to in the affidavits of Jennifer Crawford, the solicitor for the respondents and Alan Rumsley, the solicitor for the applicants. Some of the matters complained of have no real bearing on the delayed start. It is apparent however, that there has been some significant non-compliance with Court directions on the part of the applicants which has had a practical effect upon the ability of the respondents to prepare for trial. 6 The applicants were significantly out of time in the provision of a list of proposed agreed documents. A list of some 1,368 documents was submitted on the afternoon of 1 June 2006, some 13 days after the due date which was 19 May 2006. A CD Rom containing scanned copies of the documents was provided on 2 June 2006 but not in the sequence set out in the list which had been provided. The respondents' solicitor said that by the morning of 12 June 2006 54 hours had been spent by the respondents' solicitor in collating the list, a process which was not then complete. 7 Mr Rumsley, the solicitor for the applicants, accepted the delay but said that it arose because he arranged the list of documents into chronological order, cross referenced to discovery numbers. This took longer than expected. There is no suggestion that there was any contemplation of seeking an extension of time for compliance with the order. 8 The applicants were also directed on 26 April 2006 to provide a draft statement of agreed facts by 19 May 2006. This was not provided until 6 June 2006. The solicitors for the respondents replied to that draft by 9 June 2006. Agreement was only proffered on two items. As with the late delivery of the agreed documents, this is likely to have imposed a working burden on the respondents which affected their preparation for trial. It was a matter which should have been addressed much earlier than it was. Had it been addressed earlier it is possible that a substantial number of facts would have been agreed. The evidence already received at trial indicates that, both in respect of documents and events, there was a certain chronology which is not essentially in dispute. 9 The applicants had been ordered on 2 June 2006 to file an outline of opening submissions, a chronology and a dramatis personae by 8 June 2006. In the event, the submissions and the dramatis personae were not received until late on 9 June 2006 pursuant to my further order made on that day, and the chronology in the early hours of Saturday, 10 June 2006. Mr Rumsley in his affidavit referred to computer problems which caused the delay. It appears that the submissions as provided did not deal with the way in which damages were claimed. Again, it may be said that this was a small delay but given the commencement of the trial on 12 June 2006 and the undoubted intensity of preparation in the last days before the trial, a delay of this magnitude was not insignificant. 10 Particulars of damages promised in the statement of claim remain outstanding. However that is an ongoing issue which had no bearing on the adjourned commencement of the trial. 11 The delay to the commencement of the trial has been effectively one and a half days, being all of Monday 12 June 2006 and the afternoon of Tuesday 13 June 2006. The preparation, which the respondents claim was prejudiced on account of the applicants' defaults, would no doubt have been conducted earlier but for those defaults. 12 It will not be easy for the respondents to identify costs actually thrown away by reason of the delay for the commencement of the trial. These may only emerge with clarity after the trial process is complete depending upon the total time taken for its completion. 13 In my opinion, while it is appropriate that the applicants should be required to pay any costs thrown away by reason of the late start to the trial, the quantification of those costs will not be straightforward. There is little practical advantage in an order that the costs be paid forthwith. Moreover I note, as has emerged in the evidence, that the first applicant and the second respondent are in an ongoing commercial relationship by reason of a new catering contract which was entered into late last year. That ongoing commercial relationship is a matter, which as I have already observed, makes the continuance of these proceedings particularly unfortunate. However, it does raise the possibility that should the applicants be unsuccessful in the case and subject to an order for costs, costs not covered by the security for costs provided are more likely to be recoverable given the ongoing receipt of moneys from the catering contract by the first applicant in Papua New Guinea. 14 I propose therefore to order that the applicants pay any costs of the respondents thrown away by reason of the late commencement of the trial of the action. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

delay in commencement of trial defaults and delays on part of applicants effective delay one and a half days costs thrown away by reason of late commencement ordered no order for costs payable forthwith costs

I adjourned the matter until 28 April 2009 in order that the parties might make submissions on costs and penalty. On this application the applicant has sought costs on an indemnity basis. I will deal with that application immediately. There is no doubt that the applicant is entitled to an order for costs. The application needed to be made. The question is, costs on what basis? I asked the applicant to provide the Court and Dr Toben with the sum which was claimed for costs on an indemnity basis, which he did. The sum which is claimed is $228,852.20, which includes $46,244.89 for solicitor's costs, $161,483.40 for counsel fees and $12,234.17 for travelling and accommodation expenses. I am not prepared to make an award for costs on an indemnity basis in that sum. There were four directions hearings and the trial went for only three days. The applicant's evidence was in affidavit form which exhibited the publications on the World Wide Web. Those affidavits were uncomplicated and would not have, I would have thought, required the input of Senior Counsel. The applicant also provided helpful written submissions at the trial and as to penalty. However, the sum claimed appears to me to be far too high having regard to what was involved in these proceedings. Dr Toben would have no prospect of paying costs of that kind if they were awarded. His financial circumstances are such that he could not pay anything near that amount by way of costs. There will be an order that the respondent pay the applicant's costs on a party and party basis. It will be for the taxing officer to determine the amount of costs payable on that basis. At the previous hearing the applicant filed submissions in which the applicant addressed the question of penalty. A further written submission was put by the applicant also in relation to penalty. The respondent did not tender any written submissions in relation to the question of penalty. However, the respondent tendered two affidavits which he had sworn. Dr Toben addressed his history and personal circumstances which are relevant to the question of penalty, to which I have had regard. However, the matters deposed to in the two affidavits were largely irrelevant. In the first affidavit he dealt at length with the circumstances which pre-dated the hearing before Branson J and the making of the September 2002 orders. He observed that the applicant made a complaint to the Race Discrimination Commissioner of the Human Rights and Equal Opportunity Commission (HREOC) within days of the commencement of the Adelaide Institute website. He deposed to a complaint that he and another man made to the Attorney-General for the Commonwealth on 5 July 1996 in which they alleged that the Jewish teachings were anti-Christian and contrary to the multiracial and multicultural policy of the Australian Government and violate the United Nation's Human Rights Charter. They requested the Attorney-General's Department investigate "the Babylonian Talmud to ascertain whether any of its contents is in breach of any Australian law". Dr Toben said in that affidavit that he did not receive actual notice of Mr Jones' complaint until 29 July 1996. He then detailed his and his solicitor's exchanges with HREOC. He deposed to the course of the complaint and pre-hearings before Commissioner Kathleen McEvoy who was assigned to the hearing of the complaint. His complaint to the Attorney-General was dismissed, so he has said, in early January 1998. He deposed to a thesis that he received from a New Zealand resident, Dr Hayward, which he said substantially made out his defence which he tendered to the inquiry conducted by Commissioner McEvoy. He alleged that the applicant applied "considerable pressure" to Dr Hayward to have him recant his views. Dr Toben also alleged that Dr Hayward wrote to Commissioner McEvoy at HREOC but that HREOC refused to give him a copy of that letter. In his second affidavit he referred to the fact that Commissioner McEvoy received a Human Rights award from the University of Mannheim whilst he was imprisoned in Germany awaiting trial in relation to publications which he had made about the holocaust. He referred at length to the result of the publication of Dr Hayward's thesis and the resultant public controversy. It is difficult to understand how Dr Toben could have thought that any of those matters were even remotely relevant to the question of penalty. The two affidavits suggest that Dr Toben, notwithstanding an apparently high level of education, has some difficulty in understanding the nature of this inquiry and, in particular, the nature of the hearing on penalty. Any complaints that Dr Toben might have about the HREOC inquiry, which predated the September 2002 orders, could not be in the least bit relevant to a hearing on penalty for contempt. For those reasons, I refused to admit those parts of the two affidavits which were irrelevant. I will have regard to the relevant matters in Dr Toben's two affidavits. The respondent also gave oral evidence relevant to the question of penalty and to which I will also have regard. At the hearing on 28 April 2009 the respondent was again represented by counsel, Mr Perkins who made oral submissions to which I will have regard. The applicant contended in his final submission: So far as penalty is concerned, the public interest reasons for punishing the respondent's contempt now outweigh in this case the applicant's private interest in securing obedience to the orders of Branson J and the undertaking to Moore J. For this reason, the applicant, while he still has an interest (itself a form of public interest) in securing that obedience, makes no submission as to the specifics of any penalty, leaving that to the Court as guardian of the administration of justice. It is submitted that any penalty ought be sufficient to achieve the remedial effect of securing future obedience to the orders and undertaking, to punish the respondent's determined challenge to the Court's authority and effectively to deter others from following his example. I think the applicant was right to adopt the attitude expressed in paragraph 8 above. Dr Toben's evidence shows an enmity on his part to the applicant and to the Executive Council of Australian Jewry who Mr Jones represents. In those circumstances, the applicant, in my opinion, was right to leave the question of penalty to the Court which in a case such as this has the responsibility of vindicating its own authority. There is no need to recount the matters which I addressed in the trial reasons. It is enough to say that in the trial reasons I reached the conclusion that the respondent had, in disobeying the September 2002 orders and the November 2007 undertaking, conducted himself in contumelious disregard for both the orders and the undertaking. For the reasons which I then gave, because the respondent gave an undertaking to obey the September 2002 orders, on each occasion upon which he disobeyed the September 2002 orders he also breached the November 2007 undertaking. I should therefore proceed upon the basis that on 13 occasions the respondent has breached both the September 2002 orders and the November 2007 undertaking. However, that said, he disobeyed those orders on the various dates stipulated in the trial reasons which indicates an ongoing disregard for the orders of this Court. In particular, he disobeyed the September 2002 orders and the November 2007 undertaking within days of giving the undertaking and in circumstances where he had been advised by counsel to comply with the September 2002 orders. No evidence has been adduced on his behalf to explain his conduct. In particular, he made no attempt during his evidence to give any explanation as to why he has conducted himself in the manner that he has. It is relevant, in my opinion, that as the applicant's and his solicitor's affidavits show Dr Toben has continued to disobey the September 2002 orders and breach the November 2007 undertaking after the trial of these proceedings and whilst my judgment was under consideration. The applicant has deposed to accessing the Adelaide Institute website on six occasions between August 2008 and April 2009 and the applicant's solicitor has deposed to accessing the same website between December 2008 and April 2009. They have exhibited a number of documents which show continuing breaches by the respondent of the September 2002 orders and the November 2007 undertaking. That evidence has not been tendered and is not relevant for the purpose of establishing further charges of contempt against Dr Toben, but is relevant to indicate that even after the hearing before me the respondent has continued to disobey the September 2002 orders and breach the November 2007 undertaking. The continued publication of material in public defiance of the September 2002 orders and the November 2007 undertaking indicates a continuing attitude of contumacy on the respondent's part. The applicant tendered a document (Exhibit A), against Mr Perkins' objection, which was a print out of a publication which the applicant said in evidence he viewed on the Adelaide Institute website shortly after 9.00 am on the morning of the hearing on penalty. The publication on the website was after Dr Toben had sworn his first affidavit and at the same time or shortly after he had sworn his second affidavit. Mr Perkins objected to the tender on the ground of relevance. I allowed the tender of the document on the ground that it was relevant to showing the respondent's contemporary attitude to the proceeding before the Court and the authority of the Court. After the admission of Exhibit A, Mr Perkins applied to call Dr Toben to explain Exhibit A. Do I tell the truth or do I obey the Law? Zionists/Talmudists: Obey the Law, obey the Law, obey the Law! Hegelians: Tell the Truth AND obey the Law! Notice the difference in tone and sensibility? In which attitude of mind does the civilising influence lie? They last for eternity, until they are formally challenged. Prisoners of conscience refuse to follow orders because to do so would compromise their moral and intellectual integrity. Has Fredrick Toben compromised his integrity by, again, deleting material from AI's website more than that demanded by the court order, as he did in 2000 and 2002? Will his action be honoured by those charged with enforcing the court orders? Stay tuned and find out on 28 April 2009. It was a notorious fact that Mr Pratt was a wealthy Melbourne businessman who on 28 April 2009 was dying and who had been the subject of considerable publicity in the preceding week. Mr Pratt was Jewish. His race and religion were well-known to the public. He was a party to proceedings in the Federal Court of Australia in the Victorian Registry and was seeking a ruling from Ryan J to the effect that a document which he had signed in relation to civil proceedings should not be admitted in criminal proceedings which had been brought in relation to the evidence he gave in the civil proceedings. Ryan J had reserved his judgment. Mr Pratt's lawyers applied to Ryan J to deliver the ruling urgently so that Mr Pratt would know before he died whether he had been successful on that application and whether the criminal proceeding which had been brought against him would be ended. Ryan J responded to the application by delivering his ruling as a matter of urgency. On the same day as Ryan J made his ruling the criminal proceedings against Mr Pratt were ended. The document (Exhibit A) should be understood to refer to the application made to Ryan J and to describe Ryan J's accelerated ruling as an "indulgence". The document invites those accessing the Adelaide Institute website to speculate as to whether Dr Toben will receive the same "indulgence". The readers are also asked to speculate that if such an indulgence is not granted to Dr Toben, "what does this tell us about Australia's justice system? " Dr Toben admitted to being the author of the document and, in particular, writing the two questions after the reference to Mr Pratt receiving an indulgence. He was asked in evidence-in-chief when he wrote the sentence "Richard Pratt received a Judge's indulgence" and his understanding of what had happened. It was also a notorious fact that Mr Einfeld is a former Judge who was recently sentenced to imprisonment for a lengthy period. Mr Einfeld is also Jewish. Mr Perkins asked Dr Toben the same question again. Dr Toben said that he had been in Melbourne and had become aware of Mr Pratt's dying and the intense publicity associated with Mr Pratt dying and, in particular, the media referring to Mr Pratt as having received an indulgence. When he read that in the media he said that the use of the word "indulgence" brought to his mind other things. It was --- this is what aroused me when I saw the word "indulgence". I didn't quite understand that, because --- and I may add this --- because if a man is sick I fully understand that he should not be brought to court, something that, of course, doesn't happen to those who are labelled Nazi war criminals. He was sent to prison, and now there's Richard Pratt, and now there's here am I. It is a mere questioning of that --- our cases do reflect what is going on in the court, what is going on in a judge's mind. That for me is an important thing, and that will reflect Australia's justice system, how these difficult cases are handled by judges. It's not an easy task. For example, the Einfeld case clearly illustrated that there was no remission given, as such, for his prostate cancer. He had a similar problem. He has faced similar problems. Now, Richard Pratt here is close to death. I just found that it's interesting how --- or the problems the judges have in deciding these cases. It's very, very difficult. And as I maintain that we are still in a common law country, where we can speak freely, and openly, where thoughts are not criminalised, where we are free to speculate, and hypothesise. In answer to Mr Margo's question about the use of the word "indulgence", Dr Toben said that when he heard the word in relation to Mr Pratt he thought of the Catholic Church selling indulgences. I did not --- I have not in the last --- as Mr Jones would know --- in '96, from '96 onwards, since we've been locked in battle, I have not come across this term "indulgence," and the first thing that came to mind was when this --- there's this historical event occurred many centuries ago, I think, fourteenth, fifteenth century or so, and this is where the term came in. And so I certainly wondered, what's going on here, and then, of course, I thought of Marcus Einfeld, and I realised, no, the justice system is functioning. Therefore, the reason in this case, the indulgence referred to a kind of mercy, that the judge was showing towards Mr Pratt, who was dying. And as someone who cannot justify himself in court, surely he should not be continued to be prosecuted. The case goes. It drops. You've been slandering me, you have done this again and again. I asked Dr Toben what indulgence he was seeking as suggested in the document and he said he was not seeking an indulgence. Mr Margo asked Dr Toben whether it was a coincidence that Dr Toben referred to Mr Pratt and Mr Einfeld who were both Jewish. Dr Toben replied, "Are you feeling persecuted? Please don't start that. That's nonsense. It is --- I'm --- and this is where the question that this final thing, "What does this tell us about Australia's justice system", comes in. Very simple. I see it as a very simple thing, but it's got nothing to do with being Jewish or non-Jewish. He was asked whether the document was meant to convey the imputation that people should be alert to see whether a Jew receives more favourable treatment than Dr Toben from this Court. It was put to him that that answer was dishonest. Dr Toben offered an apology. In his second affidavit Dr Toben said: I am advised, and I accept, that in the circumstances that I have been found by this Honourable Court to be guilty of contempt, it is absolutely incumbent upon me to apologise for carrying out the actions which are the foundation of the findings. I do apologise. I am also advised, that I must acknowledge, and be fully aware, that failure to adhere scrupulously and fully to the terms of orders of this Honourable Court undermines the authority of this Honourable court. I acknowledge that my actions have had that effect. This is why I'm rather amazed that this item was brought into court this morning, because I cannot see --- I cannot understand why I'm not allowed to ask questions, express my doubt about these things. I cannot --- I cannot follow this. It is not a wilfulness, it is accepting your authority, your Honour, but I cannot understand why Mr Jones feels offended, or says that this is an offence. I cannot understand that. I'm asking questions. I don't understand that. And I would be the last one to challenge the system. He was cross-examined about his attitude and about the apology which he had given in writing. Dr Toben apparently had difficulty in understanding propositions put to him. He was not apparently able to understand a question put to him that if he were obliged to comply with the September 2002 orders he would thereby be prevented from telling what he perceived to be the truth, notwithstanding that in Exhibit A he posed the question "Do I tell the truth or do I obey the Law? The question that Mr Margo is presently asking you is this. I have done my best to negotiate these orders because they are rather general and confusing. I now will, from now on, not print anything unless I seek legal counsel, whether it's --- whether --- they will have to interpret the law, these orders, court orders. I can't, I'm at an end, I'm here now, because I have done my best and what's happening is that I've been smeared as someone who is totally unwilling, unable to comply with these things. I've done my best. But I cannot, without any authority, judicial authority, to negotiate these courts orders. The court orders don't make sense to me. They don't make sense to me, your Honour. Mr Margo, just a minute. It reaches the point to this morning. He's putting it forward as evidence of your attitude?---I understand that, but I'm saying now, this is my problem. You say the orders are confusing and you're unable to understand them. What is it about the order which Branson J made, which says you were not to publish the document about the Adelaide Institute, which was confusing?---That's what --- if you remember, your Honour, I wrote a lot of affidavits which was going to present my case. As you know I removed, in 2000, out of the Human Rights Commission I removed all the material from the website, as I have now; it's wiped. This document I found on the internet, and I wanted to show that I had nothing to do with it. That the item --- which, by the way, the Germans also used in their proceedings against me, so the Commissioner McEvoy used it as well, and Branson J used it --- that this document, although it's not on our website, it's on this Way Back material --- other material, other websites that I have no control over. I have never been in contact with The Way Back machine, your Honour. I'm doing my very, very best, my very best to negotiate through these orders which I don't quite follow, and I don't even understand why they weren't in force in 2004, and only because I managed to get to Tehran I sort of escaped your legal clutches. " But the problem is highlighted by this approach, Mr Margo, and that's why I wish you to concede to this, that it is possible that I will submit material. It's very difficult for me. As you see, the last page there's nothing --- nothing offensive. But, of course, anything I write may be offensive to you. " He repeated in cross-examination that he unreservedly apologised to the Court for the various acts of contempt since 27 November 2007 and he would stand by and not withdraw the apology. He also said that he accepted that his conduct since 27 November 2007 undermined the authority of the Court. Dr Toben said in his cross-examination that he considers that the orders which he is obliged to obey are unreasonable and absurd. It's your position, is it, that if the judge takes the view that you should obey the law, obey the law, obey the law, that he is falling in with the program of Zionists and Talmudists?---That would be the case. The purely --- no judge has an objective, the way I understand the judges acting. And we see this with the Pratt and Einfeld case where there is that element of the moral dimension. Every judge has that moral dimension. It's all there. I see no conflict here, except I know that in what's happening in Palestine and so on, that the mindsets are uncompromising, and it flows. All this flows into the Australian judicial system, how they handle this case. It's a reflection --- there's nothing sinister about this. It's an observation. In 1954 his parents immigrated with him to Australia, eventually becoming farmers in West Wimmera in Victoria. He was educated in Germany, Victoria and South Australia. He completed his matriculation at Edenhope in Victoria. He graduated with a Bachelor of Arts degree from the University of Melbourne majoring, I understand, in literature, philosophy and German. In 1967 he completed a second Bachelor of Arts degree at the Victoria University at Wellington in New Zealand, majoring in economics and psychology. While studying in New Zealand, he taught mathematics and English at a secondary college. In 1971 he enrolled at the University of Stuttgart undertaking a doctorate in philosophy which he was awarded in 1977. In 1978 Dr Toben studied for and obtained a teaching certificate. He subsequently taught in Rhodesia and Nigeria before returning to Australia and teaching in Victoria. He was dismissed as a teacher in 1985 which led to litigation involving his dismissal. Dr Toben has said that he was involved in Family Court proceedings between 1988 and 1994. He came to South Australia in 1992, obtained teacher registration and taught as a relief teacher until 1996. He has a medical condition which affects his legs, as a result of which he became eligible for a disability pension in 1997 which he still receives. He will be 65 later this year when he will become eligible for an age pension. He does not own the house in which he lives but does own a house in the western district of Victoria. However, that house is subject to two caveats and he has no equity in the property. Dr Toben's only assets are a car worth about $5,000 and some books. His financial circumstances would not allow him to pay a fine. The continuing publications of material in disobedience of the September 2002 orders and in breach of the November 2007 undertaking indicates continuing public defiance of the authority of this Court. Moreover, the document (Exhibit A) which was published as late as the morning of the hearing on penalty indicates, in my opinion, a continuing disrespect for this Court. The imputation contained in that document challenges the impartiality of this Court. Although Dr Toben rejected the proposition put to him by Mr Margo that his reference to Mr Pratt and to Mr Einfeld was because they were Jews, I reject that evidence. I find that Mr Pratt was referred to in the document because he was Jewish and that Dr Toben wanted those who accessed the website to ask for themselves whether Dr Toben, being non-Jewish, would receive the same indulgence that had been given to a Jew. Dr Toben made reference to Mr Einfeld also because Mr Einfeld is Jewish. His explanation as to why he referred to those two persons was disingenuous. In my opinion, the question as to the state of the Australian judicial system was posed so that the reader might infer that the failure of this Court to grant Dr Toben an indulgence would indicate that this Court would treat a Jew more favourably than Dr Toben. An important consideration on the question of penalty for a contempt of court which involves disobedience of a court order is whether the contemnor has purged his contempt and is truly contrite. The respondent apologised to Justice Moore on 27 November 2007 when he gave the November 2007 undertaking but withdrew that apology and indicated he would not comply with the undertaking within days of doing so. He has apologised again in his affidavit which he tendered on this hearing and in his oral evidence. The apology, both to Moore J and me, was unreserved. Whilst the apology has been noted, in my opinion it was given for the purpose of influencing the penalty to be imposed by this Court and for no other reason. It was given at the very last moment and on the advice of his counsel. His affidavit shows that. His answer referred to in [50] of these reasons shows a lack of remorse and contrition. I am satisfied that Dr Toben has apologised only because he was so advised and his apology does not reflect a frank acknowledgement of the contempt which has been committed or any true expression of regret on his part. I do not accept that he is contrite for what he has done. His claim that he now recognises that his conduct has undermined the authority of the Court is rejected. In my opinion, he always knew that his conduct would undermine the authority of the Court and his conduct was calculated to achieve that effect. In his evidence Dr Toben was incapable of addressing a simple proposition simply. His evidence was often quite confused. He did not answer questions directly but often, as shown in the evidence identified, made speeches which had little relevance to the question. He made a number of references to Nazi war criminals, Jews and Zionists, and he asserted in his evidence, as he had in the document (Exhibit A), that Australia was a country controlled by Zionists. Dr Toben has not attempted to give any explanation in mitigation of his conduct except perhaps his claim that he finds the September 2002 orders confusing, a claim which I reject. I have taken into account his personal circumstances including his age and his physical disability, although his disability has not been fully explained. I am of the opinion that Dr Toben's conduct evinces a calculated intention to disobey orders of the Court and undertakings given to the Court for the purpose of bringing the Court into disrepute. He has no respect for this Court or the authority of this Court. The applicant brought a contempt proceeding against Dr Toben in relation to his conduct between September 2002 and November 2007. Dr Toben offered an apology and an undertaking to obey the September 2002 orders which brought that application for contempt to an end. Within days he had publicly withdrawn his apology and reneged on his undertaking. He thereafter committed 24 counts of contempt on 13 different occasions. After the hearing of the contempt charges he continued his public defiance of the Court's authority. He published a document on the day of the hearing on costs and penalty which identified his current attitude to the Court. The applicant brought this proceeding initially for the purpose of having the Court make orders of the kind in the September 2002 orders. He sought and obtained orders restraining Dr Toben from continuing to unlawfully publish material that is likely to offend, insult, humiliate or intimidate people or a group of people because of their race or nationality or ethnic origin. The applicant is entitled to expect the orders which he has obtained be obeyed by Dr Toben. If Dr Toben refuses, as he has, to obey those orders the applicant is entitled to expect that the Court will do what is necessary to require Dr Toben to comply with the orders. The Court has the same power to punish contempts as the High Court: s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court has the same power to punish for contempts as was possessed by the Supreme Court of Judicature in England at the time of the enactment of the Judiciary Act 1903 (Cth). The High Court Rules 2004 (r 11.04.1(a)) provide that the High Court may order "that the contemnor pay a fine, be committed to prison, or both pay a fine and be committed to prison". This Court has power to punish by way of fine: Coonan & Denlay Pty Ltd v Superstar Australia Pty Ltd (No 2) [1981] FCA 197 ; (1981) 57 FLR 118. The Court has the duty of ensuring that its orders are complied with. If its orders can be disobeyed with impunity, public confidence in the administration of justice will be undermined. There is therefore not only Mr Jones' private interest that must be considered but the public interest in protecting "the effective administration of justice by demonstrating that the court's orders will be enforced": AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107. In this case, Dr Toben's conduct has amounted to a public defiance of the September 2002 orders and the November 2007 undertaking. He made it clear to the public immediately after the hearing before Moore J that he would not honour his undertaking or comply with the orders. The Court therefore has an interest over and above Mr Jones' private interest in securing the benefit of the September 2002 orders and the November 2007 undertaking and having Dr Toben comply with its orders. His public defiance of the Court's orders has called into play the "penal or disciplinary" jurisdiction of the Court: Whitham v Holloway (1995) 183 CLR 525 at 533; AMIEU v Mudginberri Station Pty Ltd [1986] HCA 46 ; 161 CLR 98 at 108. The primary purpose to be achieved in this case is the vindication of the Court's authority. The purpose of punishment for contempt in a case such as this is to vindicate the authority of the Court by punishing the contemnor and at the same time seeking to deter both the contemnor and other like-minded people from disobeying orders of the Court. Apart from the aspect of punishment, there is therefore a need to have regard to both personal and general deterrence. In Dr Toben's case the question of personal deterrence is more important than it is in many other cases. He showed, when he was previously before the Court on contempt charges, that he was when it suited him prepared to apologise for his conduct but then to almost immediately withdraw that apology and refuse to honour an undertaking given to the Court. He must understand that compliance with Court orders is not optional, but obligatory. Like-minded people must understand that people like Dr Toben cannot choose to ignore orders of the Court. For all of those reasons, a fine would not be a sufficient penalty even if Dr Toben were in a position to pay it which he is not. If I had thought a fine were appropriate, but was of the opinion that Dr Toben could not pay a fine, that would not have been a reason to impose a sentence of imprisonment. If a contemnor is impecunious and the Court thinks a fine is appropriate, the fine would have to be of a kind that the contemnor could pay. Impecuniosity could not be a reason to imprison a person when the appropriate penalty would otherwise be a fine. However, because I do not think a fine is an appropriate penalty, his financial circumstances are largely irrelevant. I have reached the conclusion that a sentence of imprisonment, although a sentence of last resort, is required in this case because of Dr Toben's conduct --- not because of Dr Toben's financial circumstances. Dr Toben will be imprisoned for three months. I have considered whether it would be appropriate to suspend that sentence by making an order that the warrant for his arrest lie in the Court for a period of time and not issue so long as Dr Toben complies with the September 2002 orders and the November 2007 undertaking. In the end result, however, I am of the opinion that the conduct has been too serious to make orders of that kind. Dr Toben has shown on a number of occasions that he is not prepared to recognise the authority of this Court. As I have already indicated but it bears repeating, the proceedings which were before Moore J for contempt of the September 2002 orders between 2002 and 2007 were brought to an end by the respondent giving an apology and the undertaking. Immediately after giving an apology and an undertaking he withdrew the apology and failed to honour the undertaking. He continued to disobey the September 2002 orders and breach the November 2007 undertaking throughout the period that contempt proceedings were being organised to be heard between November 2007 and August 2008. He continued to disobey the September 2002 orders and breach the November 2007 undertaking after the hearing of the contempt charges and up until the time of the hearing for costs and penalty. He published provocative material calculated to scandalise the Court in the document published on the website on the day of hearing. Although he is only to be punished for the 24 charges which have been proved and which were committed on 13 occasions, Dr Toben has now continued his public defiance of the September 2002 orders for a number of years. In all those circumstances, it would not be appropriate to suspend the sentence and a warrant for Dr Toben's arrest will issue. Dr Toben should understand that even after he has served his sentence of imprisonment he must comply with the September 2002 orders and the November 2007 undertaking otherwise he will be liable to further proceedings for contempt. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

penalty respondent previously found guilty of 24 counts of contempt no evidence adduced to explain respondent's conduct respondent continued to breach orders and undertaking after trial of proceedings respondent published document on morning of penalty hearing scandalising the court evidence showed a continuing public defiance of authority of the court conduct designed to undermine authority of the court applicant entitled to expect the orders obtained to be obeyed by the respondent respondent's public defiance of court's orders gives rise to penal or disciplinary jurisdiction of the court respondent impecunious seriousness of respondent's conduct meant financial circumstances not relevant to question of penalty impecuniosity not a reason to imprison a person when the appropriate penalty would otherwise be a fine sentence of imprisonment required because of seriousness of conduct inappropriate to suspend sentence respondent to be imprisoned for three months application for indemnity costs sum claimed by applicant too high for what was involved in proceeding respondent impecunious and unable to pay applicant's costs to be paid by respondent on a party and party basis contempt costs

It regularly advertises its jewellery for sale in a way that has attracted the attention of the Australian Competition and Consumer Commission ("ACCC"). It does so by publishing and distributing catalogues to the public promoting the sale of a range of jewellery items and offering each item for sale at a price described as a "now" price near a picture of the item and another price described as the "was" price. The "was" price is higher, and often much higher, than the "now" price. ACCC contends this method of promotion is misleading and deceptive. It alleges that Prouds has contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) ("the Act "). The gravamen of ACCC's case is that the "was" price would be viewed as a previous selling price but the price at which, historically, each item was actually sold was often less. The evidence was given by Mr Searles (a director of the enforcement and coordination branch of ACCC), Dr Ferrier (accountant), Ms Bogan (a cluster manager for Prouds), Mr Cockayne (previously the merchandise manager for Prouds and currently the General Manager of Goldmark Jewellers Pty Ltd), Ms Mangelsdorf (a director of Prouds), Ms Osborne (gold jewellery buyer for Prouds). I understood Ms Osborne's affidavit was not read but her evidence was, nonetheless, relied on in final submissions. Mr Cockayne and Ms Mangelsdorf were cross-examined. In addition, some facts were agreed by the parties (in a statement of agreed facts) and others were admitted in the pleadings. From this material the following emerges. In these reasons, unless I indicate otherwise, recounting facts constitutes findings of fact. Prouds publishes catalogues in which it offers jewellery for sale at discounted prices for a limited period. These proceedings concern 17 items of jewellery promoted for sale in two catalogues entitled "Summer of Love" and "Love You Mum". In those catalogues, the jewellery items were advertised using a "was" price and a "now" price. The form of the catalogues is exemplified by the front pages of each which are reproduced in schedule 1 to these reasons. In one instance a pair of earrings had a "were" price but for convenience, that will be treated as a "was" price. Schedule 2 sets out "was" and "now" prices appearing in the Summer of Love catalogue for each of the 17 items of jewellery and schedule 3 sets out those prices for the relevant items appearing in the Love You Mum catalogue. The Summer of Love catalogue was first published by Prouds on 29 January 2006. In total, 5,390,711 copies were printed and distributed predominantly by letterbox drop (4,944,711 copies) but also by providing copies at Prouds stores (291,700 copies) and distributing them through newspaper inserts (154,300 copies). Copies of the catalogue were distributed on 31 January and 7 February 2006. On the back of the catalogue were the words "All offers valid while stocks last or until offer ends 28/02/06. " The Love You Mum catalogue was first published on 23 April 2006. In total, 5,552,821 copies were printed and were distributed by similar means and in similar proportions as the Summer of Love catalogue. On the back of the Love You Mum catalogue were the words "All offers valid while stocks last or until offer ends 15/05/06". The audience for both catalogues was agreed by the parties to be "the public generally". Prouds has over 140 outlets. The jewellery industry is highly competitive. Prouds, like its competitors, discounts jewellery. That is, jewellery is sold at less than the price marked on the price tag or ticket attached to the goods. It is an agreed fact that because of the competitive nature of the industry, in order to make sales, Prouds would often sell items of jewellery that were not already discounted through part of a promotion or sale, at prices that were below the regular marked price. This could be as a result of any of a variety of discount policies as well as a general discretion that sales staff had to offer discounts in order to secure sales. Details of these policies and the level of discounting are in evidence as part of the agreed facts. Suffice it to say that if the consumer was aware that discounts were available and was aware that it was possible to negotiate paying something less than the regular marked price, it is probable that that particular consumer could, at least in certain circumstances, purchase the item for less than the regular marked price. I should note that ACCC challenged the use of the expression regular marked price given the constant cycle of discounting deployed by Prouds (discussed shortly). There is some force in this contention and I use the expression for convenience only. Somewhat simplified, the case of ACCC was: • The publication of the two prices suggested in a misleading way that a consumer would save the difference between the "was" price and the "now" price if the item was purchased during the sale period ("Level of Savings Representations"). • The publication of the "was" price suggested in a misleading way that this price was the usual price at which item would have been purchased before the sale period ("Usual Price Representations"). • The publication of the "was" price suggested in a misleading way that there had been a substantial volume of sales, before the sale period, of the item at that price. ("Substantial Volume of Sales Price Representations"). • In relation to three items in the Summer of Love catalogue and 11 items in the Love You Mum catalogue, the publication of the "was" price suggested in a misleading way that the items had been sold at that price immediately before the sale period. ("Previous Selling Price Representations"). • The publication of the "was" price suggested in a misleading way that the items had been offered for sale at that price before the sale period ("Advertised Price Representations"). Having regard to some of the submissions made by Prouds, greater attention is given to the pleadings later in these reasons. Each of the representations is alleged to have been made by the publication of both the Summer of Love and the Love You Mum catalogues except the Advertised Price Representation which was restricted to the publication of the latter catalogue. Many of the issues raised in the proceedings are relevant to a consideration of each of these alleged representations. It is convenient to consider most central issues in detail by reference to one of the alleged representations on the basis that the conclusions I reach will apply to the other alleged representations. I start with the Level of Savings Representations. It is necessary to refer, in a little more detail, to some of the evidence before considering the elements of this allegation and whether it is made out on the evidence. A regular feature of Prouds business model was the discounting of all or selected items of jewellery in promotional sales conducted at various times throughout the entire calendar year. In substance, discounting occurred throughout the entire calendar year. This was achieved using catalogues (in 2005, for 28 weeks and in 2006, for 33 weeks) or in store (generic) promotions (in 2005, for 24 weeks and in 2006 for 19 weeks). It is to be recalled that the Summer of Love sale commenced on 29 January 2006. During the previous calendar year there had been 15 promotional sales. At no point in the year was there no promotional sale occurring. The first promotional sale was between 2 January 2005 and 23 (or 28) January 2005 being the Summer sale (Generic) and the last several being the Pre-Christmas Catalogue sale between 13 November 2005 and 24 December 2005, a Make This Christmas Special Catalogue sale between 4 December 2005 and 24 December 2005 and a Boxing Day sale between 26 December 2005 and 31 December 2005. Without identifying the periods over which the other promotional sales took place they were variously called (in the order in which they occurred during 2005 though they were described in different ways at various points in the evidence which may mean what follows is not entirely accurate), Valentines "Love Struck" Catalogue sale, Gold (Generic) sale, Silver (Generic) sale, May "For All She Does" Catalogue sale, Mad May (Generic) sale, Price Cuts Clearance Catalogue sale, Gold (Generic) sale, It's Time to Sparkle Catalogue sale, Spring Savings Catalogue sale, Absolutely Everything sale (Generic) and Summer Styles to Enjoy Catalogue sale. In 2006, the Summer of Love sale was preceded by the Sale (Generic) (which also appears to have been called the Summer sale as it was in 2005) between 2 January 2006 and 28 January 2006 and the Love You Mum sale was preceded by a Gold and Silver (Generic) sale (1 March 2006 to 1 April 2006) and a Jewellery Price Slash Catalogue sale (2 April 2006 to 22 April 2006). Many of the 17 items to which these proceedings relate were, prior to the Summer of Love sale and at various times through 2005 offered for sale at discounted prices, though some were not marketed until well into that year. The periods, in aggregate, for which the items were offered at the regular marked price are set out in a table which follows shortly. Also set out in the table is the last occasion (on or about the nominated date) on which each item was sold at the "was" price before both the Summer of Love sale and the Love You Mum sale as well as when each item was last offered for sale at the "was" price. Also noted is whether the item was affected by a change in the gold price (as Prouds contended) which is an issue discussed later. For that reason, the percentages and the dates are only approximate. I should add that this summary and the information from which it was derived does not accord in at least one respect with the pleaded case of ACCC. Part of that case (arising in relation to the Advertised Price Representations) was that items 2894889, 2958972 and 2971390 had been offered for sale between 26 December 2005 and 22 April 2006 at a price which in each case was less than the "was" price in the Love You Mum catalogue. The information furnished by ACCC correctly indicated that in relation to those three items, they were offered for sale, between 1 March 2006 and 1 April 2006, at the "was" price identified in the Love You Mum catalogue even though they were gold items subject to a price increase effective 1 March 2006. Another way of representing information concerning the price at which the 17 items were sold in the period leading up to the Summer of Love sale and the Love You Mum sale was found in three tables prepared by ACCC. They are schedules 4, 5 and 6 to these reasons. In relation to the Summer of Love sale, schedule 4 concerns sales in the period 23 October 2005 to 28 January 2006. In relation to the Love You Mum sale, schedule 5 concerns sales in the period 1 April 2006 to 22 April 2006 and schedule 6 concerns sales in the period 1 March 2006 to 22 April 2006. These tables set out the "was" price for the 17 items in each sale, the percentage of sales at the "was" price, the price at which most sales were made (the mode price) and the percentage of sales at the mode price. In summary, in relation to the period preceding the Summer of Love sale, the table reveals that in all instances less than half of the sales were at the "was" price, mostly the percentage of the sales at the "was" price was comparatively small and that the mode price was, in the majority of cases, less than the "was" price and that the percentage of sales at the mode price was in most cases markedly higher than the percentage of sales at the "was" price. In the two periods preceding the Love You Mum sale, there were, in relation to many items, no sales at the "was" price and no instances where the mode price was the same as the "was" price. ACCC has pleaded, cumulatively or in the alternative, that by its conduct, Prouds made the five representations summarized earlier. ACCC bears the onus of proving that these representations, as pleaded, are what would be conveyed to the relevant audience or section of the public. Accordingly, it is necessary first to identify what is a relevant audience and secondly whether it would understand the pricing in the catalogue as conveying the pleaded representation. The leading authority on this question is the judgment of the High Court in Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45. In considering the nexus between the conduct and the likely misleading or deception of the prospective purchasers in the case of representations to the public it is necessary to isolate who are the "ordinary" or "reasonable" members of the class of prospective purchasers. In Campomar the Court explained that this process involves an objective attribution of certain characteristics. Such a person would not fail to take reasonable care of their own interests. It is necessary to isolate by some criterion a representative member of that class to determine whether a misconception is likely to arise from the conduct alleged (see [103]). Section 52 contemplates the effect of the conduct on reasonable members of a class. The parties did not dispute the applicable principles in determining the relevant audience though there was an issue about the result in the facts of this case. ACCC submitted, correctly (and it was an agreed fact), that the audience for each catalogue was the public at large but went on to submit that at least one material section of this audience would have been misled or deceived by Prouds' conduct, namely consumers without experience in purchasing jewellery and without knowledge of the Australian jewellery industry or Prouds' pricing or promotion practice. As noted earlier, discounting is common in the jewellery industry and is a feature of Prouds' business model. Discounting occurs both during promotional periods in relation to the items being promoted and also in relation to items being offered for sale at the regular marked price. It is a consumer who would be quite happy to pay the full "regular market price", and who if unhappy with that price would either go elsewhere or wait for a price promotion of the item in question. In short, it is a consumer who is ignorant that discounts are or would be available below a regular marked price" . Support for this conclusion is found in the evidence concerning historical sales at the regular marked price. Schedule 4 reveals a material percentage of sales at the "was" price even though they were the minority of sales and often a small minority. It is probable that those sales were, in many instances, to consumers who were unaware that discounts were available. It is tolerably clear that in identifying the hypothetical individual contemplated by the joint judgment in Campomar and in considering the effect of the impugned conduct on that individual, the Court can identify from a general and diverse group which may constitute the audience, a hypothetical individual who is most likely to be misled but only in the sense used in the following quotation. That is, one can test the effect of the conduct on a subclass of that general and diverse group. So much is apparent from the judgment of the Full Court in Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215. Second, when considering the likely effect of the misrepresentation on this hypothetical person he (or she) should be judged as an 'ordinary' or 'reasonable' member of the class. In this way, reactions to the representation that are 'extreme' or 'fanciful' will be disregarded. Logic demands that if one is dealing with a diverse group then, for the purpose of determining whether particular conduct has the capacity to mislead, it is necessary to select a hypothetical individual from that section of the group which is most likely to be misled. If the court is satisfied that this hypothetical individual is likely to have been misled by that conduct, that would be sufficient. There is no inconsistency between testing the effect of the representation by reference to ordinary or reasonable members of the class and by reference to the hypothetical individual. The attribution of characteristics to the ordinary and reasonable members of the class must be objective in order to allow for the wide range of persons who would in fact make up the class: National Exchange Pty Ltd v Australian Securities and Investments Commission (2004) 49 ACSR 369 at [68] per Jacobson and Bennett JJ. Within a large class there may be a number of subclasses of ordinary and reasonable people. Thus in the present case there may be ordinary and reasonable persons who were well informed about the internet and the domain name registration system and other persons, equally ordinary and reasonable, who were not. Only the fifth, the Advertised Price Representations contemplated that the "was" price referred to a previous offer price. Central to the defence of Prouds, was the contention that the "was" price would have been understood as the offer price and not the sale price. Before considering what this juxtaposition of the words "was" and "now", in this particular context, would have been understood to mean by the hypothetical consumer in the subclass relied on by ACCC, it is convenient to refer to several authorities in which a broadly similar issue has been considered. They each concern alleged misrepresentations based on dual pricing either in catalogues or on swing tags. In Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 , Allans Music Group Pty Ltd had pleaded guilty to charges arising out of breaches of s 53(e) of the Act for making false or misleading representations about the price of goods in promotional catalogues. From the summary of facts agreed at the trial it emerged that Allans engaged in dual pricing by advertising for sale, in catalogues, various musical instruments with a "was" and a "now" price during the period leading up to Christmas 2000. The catalogue was produced as part of its Christmas sale. It appears from the summary of facts that Allans had not sold nine items (each the subject of a charge to which Allans pleaded guilty) at the price identified as the "was" price between January 2000 and the time of the publication of the catalogue at the end of that year. As the agreed facts clearly demonstrate, this was false in the sense that for all practical purposes, the items in question had not been sold in the pre-Christmas period at the "WAS" price but rather at prices which were substantially below the claimed "WAS" price. The representation as to the savings for members of the public was the amount calculated as the difference between the "WAS" price that had been charged prior to the Christmas sale period and the "NOW" price, which would be charged during the Christmas sale period. Nevertheless, it is clear from his Honour's comments about the agreed facts that he took the view that a false representation had been made because the goods had not be sold at the advertised "was" prices. His Honour treated the "was" price as a sale price. A similar issue arose in Commissioner of Competition v Sears Canada Inc (2005) 37 C.P.R. (4th) 65, a decision of the Canadian Competition Tribunal concerning representations made in a sales catalogue for Michelin tires. The Tribunal was considering the Competition Act , RSC 1985, c. C-34. I find that the general impression conveyed by them to an ordinary citizen is that consumers who purchased the Tires at Sears' promotional prices would realize substantial savings over what they would have paid for the tires had they not been on promotion. This impression is consistent with the literal meaning conveyed by the representations. That matter again concerned breaches of s 53(e) of the Act . O'Loughlin J had to assess the appropriate penalty. The contraventions in that case related to dual priced swing tags on clothing. They showed two prices, the higher price crossed through and the lower price written in, in circumstances where the garments had not previously been "offered for sale" at the higher marked price. His Honour imposed penalties on the basis that the defendants had reasonable cause to believe that the effect of the two-priced swing tag was that a member of the buying public would assume that the garment had previously been offered for sale at the higher of the two prices and was now available at the lower price. Simmonds J's judgment concerned an application for an interim injunction under the Fair Trading Act 1987 (WA) and s 80(2) of the Act . It was alleged the defendant had contravened various provisions of the Act , including s 53(e). The context in which the relevant misrepresentation was discussed was whether there was a serious question to be tried in relation to dual price ticketing of rugs. The tickets did not use the word "was". The tickets showed details concerning the rugs including what appeared to be a printed price, and another, significantly lower price, apparently hand written. In discussing the evidence, Simmonds J referred to evidence that rugs bearing dual price tickets were displayed without ever having been offered for sale in Western Australia at the highest price displayed although there was also evidence of rugs bearing dual price tickets which had "originally sold at the highest price". On the face of it and because the evidence was partially in conflict, Simmonds J found there was a serious question to be tried as to the "false, misleading or deceptive character of dual price tickets". There is evidence in this case... of dual practice ticketing in circumstances that falsify the expectation I have described, given the inapplicability in this state of the higher price at any time. While it was only necessary in Cue to determine that a prospective purchaser would understand the higher price had been applicable at some previous time, I consider the quoted language to express his Honour's view of the prospective purchaser's understanding of the ticket in that case. That is an understanding that would apply all the more, it seems to me, in this case, as to the tickets bearing the heading, for the lower price, of "sale price". The relevant legislation in that case was s 13(g) of the Fair Trading Act 1986 (NZ) which prohibited the making of false or misleading representations with respect to the price of goods and services by particular persons (in trade etc). The only issue for determination was whether the representations contained in brochures were misleading, as that term was used in the Act. Brochures gave two prices where the higher prices were described as "was" or "were" and the informant alleged that the vast majority of sales during the non-promotional periods immediately before the promotional periods were not at the "was" price. The proceedings in that court were criminal prosecutions and so the criminal standard of proof applied. The informant's case was that the brochures were misleading and the "was" price should be the average sales price which had been achieved in the preceding non-promotional period. I do not consider that it is necessary for the defendant to establish that actual sales were in fact made, rather than the goods were available and offered for sale at the "was" prices. ... once a promotion ceased, ... the default price which had remained on the price tag through out, and which was programmed in to the central computer was reinstated. Accordingly, it seems to me on the evidence I have heard that the "was" price was the price at which goods "were available" immediately prior to the relevant promotions. The fact that there may have been few or no sales to the public at that price is, in my judgment, irrelevant to this case. ACCC contended the "was" price in the catalogues would be taken by the hypothetical consumer to indicate the price at which each item had been sold to consumers in the past at least in the context of considering the Level of Savings Representations. Prouds, on the other hand, contended that the "was" price would have been understood to be the price at which each item had been offered for sale. This was said to flow logically from the fact that the "now" price could only be an offer price, and the juxtaposition of the two prices would be viewed as comparing prices of the same character together with particular features of catalogues themselves (various icons and the font sizes). It is necessary to refer to some of the evidence (mainly relied upon by ACCC) about the extent to which discounts were sought, discounts were given and items were sold at the regular marked price. Mr Cockayne, a merchandise manager of Prouds from 3 April 2006 to 18 February 2007 and now the General Manager of Goldmark Jewellers Pty Ltd said that in his experience, including discussions he had had with Prouds' employees, sales staff start their relationship with a customer with the intention of trying to sell an item at the full price, but they also have in their mind that they need to achieve certain sales targets, that they must make a certain gross profit and that they must comply with Prouds' policy that sales staff must, wherever possible, ensure that customers purchase their required items from Prouds rather than a competitor. The result, he said, was that staff most often used a discount as the tool to make sure they met those objectives and that sales staff who dealt with customers on a day-to-day basis used a discount in the great majority of cases to close the sale. Mr Cockayne also said that, in his experience, gained from visits to jewellery stores over a number of years (including Prouds' and competitors' stores), his discussions with Prouds' management and retail sales staff and discussions he has had with members of the public, the large majority of customers ask for, and expect to be given, a discount when purchasing jewellery and that Prouds sells very few of its items at the regular marked price. Fewer than 1% of sales of 9 of the 10 top selling items (from 23 October 2005 to 29 January 2006) occur at the "regular marked price" and the remaining item (a 9ct set of 3 Hoop Earrings) sells at that price in 1.38% of cases. Ms Osborne also gave evidence concerning this question. She is the gold jewellery buyer for Prouds whose responsibilities included planning and preparing the gold sections of Prouds' catalogues and generic sale promotions, ensuring that Prouds' objectives in terms of gold sales and gross profit percentages were met by monitoring the performance of the gold range and liaising with Prouds' staff in Prouds' jewellery retail stores in relation to pricing and discounts for gold items. Ms Osborne said that from time to time she had refused requests from store managers to discount certain items in her gold range on non-sale items, though approving discounts was not her responsibility and that the final decision lay with store managers. She said that she was aware of certain stores where sales staff would offer a discount on almost every item sold and that while Prouds offered items to its customers at the retail price expecting to achieve sales at their retail price, the degree of competition between jewellery retailers would often prevent sales at the full price. Ms Bogan also gave evidence on this topic. She is a cluster manager for Prouds. In this role, she oversees the management of Prouds' jewellery retail stores at Nepean, Wetherill Park and Merrylands in New South Wales. Her responsibilities included ensuring promotional set-up instructions issued to stores are followed and that stores are managed and run in accordance with Prouds' policies. She is also responsible for ensuring sales staff meet Prouds' customer service standards. Ms Bogan said that, based on her 17 years' experience selling jewellery in Prouds' stores, the majority of customers that she deals with on a day to day basis do not expect to pay full price for jewellery. In her opinion, the fact that Prouds' stores are located in close proximity to other jewellery retailers, encourages customers to shop around, giving them greater bargaining power to seek, and obtain, discounts. She said that customers frequently ask her what the best price is for an item or staff under her supervision refer such queries to her. Other issues referred to her are when a customer is only prepared to pay an amount less than the amount displayed or when a customer has seen a similar item offered for sale by a competitor at a cheaper price. She noted that they do not get as many requests for discounts on silver. Ms Bogan said that the best way to win sales was through offering the best customer service possible and being able to discount an item to meet the customer's expectations. She allows staff under her supervision to offer a 10% "VIP Discount" without further approval. This evidence, which I accept, clearly points to extensive discounting by Prouds which, in any event, is also apparent from the evidence concerning actual sales of the 17 items to which these proceedings relate in the periods preceding the publication of the Summer of Love catalogue and the Love You Mum catalogue. However, this evidence (both the oral evidence and evidence of sales), does not warrant a conclusion that the hypothetical consumer ACCC relied on (see [ 17 ] above) would be likely to receive a discount were they to seek to buy an item of jewellery from Prouds in a non-sales period, unaware as they would be, of the practice of discounting in the industry generally or by Prouds in particular. These matters tended to suggest that the "was" price might, for this hypothetical consumer, not be misleading if the "was" price were viewed as the price that would have been paid. It is to be recalled that ACCC invited consideration of a consumer who did not appreciate that discounts were or would be available resulting in a price less than the regular marked price. I accept that this hypothetical consumer would, when seeing a "was" price in juxtaposition with a "now" price in relation to an item of jewellery which the consumer might be interested in purchasing, contemplate what savings he or she might achieve if the item was purchased during the sale. However, I doubt that such a hypothetical consumer would have viewed the "was" price as either a bare sale or a bare offer price as a matter of characterisation. Rather, it is probable, in my opinion, that the hypothetical consumer would have seen the two prices (the "was" and the "now" price) in juxtaposition and, in the context of considering what savings might be achieved, would have understood that before the sale to which the catalogue related, he or she would have bought the item for the "was" price had it been purchased then. But now, during the sale period, he or she would be able to buy the item at the "now" price. The difference between those two prices would be seen by the hypothetical consumer as the savings that would be achieved by him or her by purchasing an item during the sale period. The focus of the hypothetical consumer's consideration of the pricing in the catalogue would, in the context of savings to be made, be on the benefits flowing to him or her by the sale to which the catalogue was directed. Implicit in this analysis is that the "was" price was the price at which the goods were being offered for sale in the period before the promotional sale and thus the price at which they would then have been bought. I doubt that the hypothetical consumer relied on by ACCC would undertake a process of logical analysis by first identifying the "was" price as the offer price and then concluding that he or she might have accepted the offer price and thus have purchased the item at that price. The hypothetical consumer's reaction to the juxtaposition of the "was" price with the "now" price, in my opinion, would more likely be impressionistic rather than analytical. Nonetheless, part of that impression would have involved, at least implicitly, an understanding that the "was" price represented the price at which an item had been offered for sale before the promotional sale period. But in the result, the impression of the hypothetical consumer when considering what savings might be made would be that the "was" price identified the price at which an item would have been bought by that consumer before the sale. ACCC's case concerning at least the Level of Savings Representations, as originally advanced, appeared to involve taking what is now known about the conduct of Prouds dealing with actual consumers (those who have received discounts) who are almost certainly not in the subgroup of consumers from which the present hypothetical consumer is drawn, and treating that knowledge as in some way colouring what should be concluded about how the hypothetical consumer would view the "was" and "now" pricing of items in the catalogue. But the hypothetical consumer ACCC pointed to would not have sought and, more probably than not, would not have been given a discount had they sought to purchase one of the contentious items prior to the Summer of Love or Love You Mum promotional sale periods when the item was being offered at the regular marked price. It is now convenient to analyse separately the position concerning the Summer of Love catalogue sale and the Love You Mum catalogue sale. That is because the former, and not the latter, was potentially affected by decisions made within Prouds about prices of items having regard to an increase in the price of gold. As noted earlier (at [ 10 ]-[ 11 ]), the 17 contentious items in the Summer of Love catalogue were offered for sale at the regular marked price for various periods during 2005. Mostly, they were offered for sale at the regular marked price for more than 50% of the time (that they were available) during that year. However from 26 December 2005 until the commencement of the Summer of Love sale period (29 January 2006) all of the items had been discounted during the Boxing Day sale and the Summer Sale. Two of the items, item 2952471 and item 7550654 had not been offered for sale at the regular marked price since before 13 November 2005 (when the Pre Christmas Catalogue sale commenced) and before 4 December 2005 (when the Make This Christmas Special Catalogue sale commenced) respectively. In these circumstances, it is clear that none of the 17 items were being offered for sale at the regular marked price in the period immediately before the Summer of Love catalogue was published. The hypothetical consumer (with the characteristics discussed at [ 17 ] above) would almost certainly have purchased any of the items in that period at a price less than the "was" price. The question that then arises is whether the inclusion of the "was" price in juxtaposition with the "now" price in the Summer of Love catalogue for those 17 items and the publication of the catalogue constituted misleading or deceptive conduct. It is appropriate to return to the authorities. In Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 200, Deane and Fitzgerald JJ emphasised that " no conduct can mislead or deceive unless the representee labours under some erroneous assumption ". The issue of how a Court determines whether conduct was misleading or deceptive was addressed by the High Court in Campomar . As noted earlier, the Court indicated the hypothetical person would not fail to take reasonable care of their own interests. Section 52 contemplates the effect of the conduct on reasonable members of a class. The Court noted that in an assessment of the reactions or likely reactions of the "ordinary" or "reasonable" members of the class of prospective purchasers of mass-marketed products for general use, the Court may well disregard assumptions by persons whose reactions are extreme or fanciful (at [105]). More recently, In National Exchange Pty Ltd v Australian Securities and Investment Commission [2004] FCAFC 90 ; 49 ACSR 369, Jacobson and Bennett JJ concluded (at [70]) that "[a] finding that reasonable members of the class would be likely to be misled carries with it the determination that a significant proportion of shareholders would be misled ". In my opinion, the relevant hypothetical consumer would have made the erroneous assumption that had he or she sought to buy any one of the 17 items in the period immediately before the Summer of Love catalogue sale commenced (viz. 29 January 2006) he or she would have purchased it at the "was" price. That assumption would be erroneous because, notwithstanding that such a consumer would probably have purchased an item at the offer price, none of the items were, at that time, being offered for sale at the "was" price. It is improbable, in my opinion, that the hypothetical consumer would have viewed the "was" price as the price at which the goods would have been purchased by him or her at some indeterminate time before the sale such as the period preceding 25 December 2005 for 15 of the items, or 13 November 2005 or 4 December 2005 when two items had been offered for sale at the "was" price. However, does this conclusion lead to the ultimate conclusion that the Level of Saving Representations, as pleaded, was made? It is convenient, at this point, to digress and mention one matter raised by Prouds. It is important to the disposition of this case. Prouds submitted that the issues in this case were narrow with precise allegations in respect of 17 items and five specific representations. Prouds submitted the proceedings were not "an at-large inquiry" as to whether using "was" and "now" pricing is, in any way, misleading. Prouds referred to several authorities. In its written outline of closing submissions, it referred to Truth about Motorways Pty Ltd v Macquarie Infrastructure Investment Management Pty Ltd (1998) 42 IPR 1 at 3, Phoenix Court Pty Ltd v Melbourne Central Pty Ltd [2007] FCA 1101 , Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 per Burchett J at 42,679. In oral submissions Prouds referred to Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22 , which was said to demonstrate that a matter raising s 52 can turn on the specificity of pleadings. Prouds' submission must, at a level of generality, be accepted. The pleading alleged that the Level of Savings Representations were false because they erroneously represented the amount a consumer would save. As pleaded, the saving falsely represented was the difference between the amount represented by the "now" price and the amount usually paid by consumers in the eight weeks preceding the publication. The case advanced by ACCC was based on the actual sales to consumers which, overwhelmingly in relation to most of the 17 items and entirely for the remainder, were at a sale price less than the "was" price. However, in my opinion, this is not the representation conveyed to the relevant hypothetical consumer by the juxtaposition of the "now" and the "was" price as they appeared, in context, in the catalogue. As I indicated earlier, the hypothetical consumer would not, in my opinion, have contemplated that the "was" price concerned what consumers actually paid if contemplating what savings the particular hypothetical consumer would achieve. That is, the hypothetical consumer would not have taken the "was" price as signifying the price actually paid by consumers including consumers who knew that discounting and bargaining was a feature of the jewellery industry and, accordingly, had negotiated or secured a price less than the regular market price. The hypothetical consumer would, when considering what savings might be made by purchasing during the sale, have viewed the "was" price as the price he or she would have paid had they bought the item before the sale period. Though, as I earlier indicated, this would have involved an erroneous assumption, it is not the case ACCC pleaded and presented. Accordingly, the representation as pleaded by ACCC is not established in relation to the Summer of Love catalogue. The case of ACCC was based on the "was" price being treated as a reference to prices actually paid including prices paid by consumers who were aware of discounting and negotiated a price less than the regular market price. It is not, in my opinion, an assumption that should be made. The same analysis leads to the same conclusion in relation to the Love You Mum catalogue. During the hearing, senior counsel for ACCC indicated that the pleading should be understood as including words to the effect of those in bold between the square brackets. This was not resisted by senior counsel for Prouds. The Usual Price Representations, as pleaded, entail the "was" price being viewed by the hypothetical consumer as the usual price for the item, either as the offer price or the sale price. Counsel for Prouds submitted that the notion of an item having been offered for sale or sold at a "usual" price includes with it the notion of the item having been offered for sale or sold at a lower or higher price. But the notion of a usual price in the context of promotional sales can mean no more than the ordinary or non-sale price. In my view, that is how the pleading should be understood. It is apparent the "was" price did not appear in the Summer of Love catalogue in isolation. It appeared in juxtaposition with a "now" price. Plainly the "now" price identified the discounted price at which the item could be purchased during the sale period. The message conveyed by the "was" price in this context, was that the item, immediately before the sale, was being offered for sale and could be purchased for the "was" price. Senior counsel for Prouds challenged the proposition that the "was" price should be treated as referable to the period immediately before the catalogue was published (and the sale commenced). However the juxtaposition of the two prices was intended to create a contrast. The contrast was between circumstances existing before the sale and those existing during the period of the sale. The period before the sale included the period immediately before the sale. It was misleading to identify in the Summer of Love catalogue a "was" price which did not represent the price at which an item had been offered for sale and would have been purchased by the hypothetical consumer immediately before the sale commenced. This representation is established in relation to both the Summer of Love catalogue and the Love You Mum catalogue. This contention entails the "was" price having been viewed by the hypothetical consumer as saying something about the volume of sales at that price before the publication of the catalogue. I do not accept that it would have been viewed this way. Is it highly unlikely that the hypothetical consumer would have even thought about the volume of sales when observing, in the catalogue, the "was" price in juxtaposition with the "now" price. This representation is not established. It entails the "was" price being viewed by the hypothetical consumer as the usual selling price for the item. I do not accept that it would have been viewed this way. Experience suggests sales are often the result of a need to increase turnover. That is often because minimal sales have been achieved at ordinary or regular prices. I do not think a hypothetical consumer would treat a "was" price as saying anything about the price at which actual sales had been achieved before the introduction of the discounted price. It also relates only to the Love You Mum catalogue. I should note that at the beginning of the hearing, senior counsel for ACCC adverted to the possibility of seeking leave to amend the pleading so as to raise this allegation in relation to the Summer of Love catalogue as well. Senior counsel for Prouds made it clear that any such application would be opposed. As it transpired, the application was never made. It is to be recalled that The Love You Mum catalogue was first published on 23 April 2006 and that on the back of the Love You Mum catalogue were the words "All offers valid while stocks last or until offer ends 15/05/06". On or about 2 April 2006, Prouds published the "Jewellery Price Slash catalogue" which stated that "all offers valid ... until offer ends 30/04/06". There was what I consider to be an irrelevant factual dispute about when the sale concluded. I will proceed on the basis that the sale went until, at least, 22 April 2006. This promotion is significant because it immediately preceded the Love You Mum promotion and offered for sale, at less than the "was" prices in the Love You Mum catalogue, all of the contentious 17 items. It was common ground (having regard to the pleadings) that a number of the contentious items in the Love You Mum catalogue were not offered for sale at the "was" price in the period immediately preceding the sale to which the catalogue was directed. In relation to seven items (2906399, 2937001, 2952471, 2958299, 2996980, 4050554 and 4050562), the items had never been offered for sale at the "was" price. That is, the "was" price had never been the regular marked price. Prouds admitted that all but three (2894889, 2958972 and 2971390) of the 12 items referred to in par 38 of the amended statement of claim were offered for sale at a price less than the "was" price in the Love You Mum catalogue between the period 26 December 2005 and 22 April 2006. The defence reflects the fact. That is, those three items were offered for sale between 1 March 2006 and 1 April 2006 at the increased regular marked price (increased because of the increased price of gold) which became the "was" price in the Love You Mum catalogue though in the Jewellery Price Slash sale were offered for sale at a price less than that "was" price. Prouds also admitted that the five items referred to in par 39 had been offered for sale in the period 26 December 2005 to 22 April 2006 (except for the period from 1 March 2006 to 1 April 2006) at a price less than the "was" price in the Love You Mum catalogue. These matters are reflected in a summary form in schedule 7. It is convenient, at this stage, to explain how some of the items had never been offered for sale at the "was" price. Generally, the regular marked price was a price determined, principally, by taking into account costs and gross profit margins. Those costs included the item's labour costs and, in relation to gold items, the cost of gold. Prouds' mark up was also taken into account. The regular marked price was set by Prouds' buyers and usually the items were new items and had no sales history. It was a price which would ordinarily endure for the life of the item. In about August 2005 the price of gold began to increase. That increase eroded Prouds' margin. Towards the end of 2005, discussions took place within Prouds' management about increasing the price of items containing gold. In January 2006, a decision was made to increase the price of items of gold jewellery, principally, to meet the increase in their costs caused by the increase in the international gold price. The decision was made by Mr David Norman who was the Group Managing Director of James Pascoe Ltd which owns Prouds. At times he was described in the evidence also as the Managing Director of Prouds. So too was Mr Mike Russell who no longer works for the company. Mr Russell was held responsible for what transpired, namely the failure to ensure that the Prouds' promotional material was not misleading having regard to changes in the regular marked price. A certain amount of preparation was necessary before the decision to increase the prices could be implemented. It was necessary to reprice between 6000 and 7000 gold items. This involved the generation of a spreadsheet of all the items (over 6000) to be repriced, individually reviewing and adjusting each gold item's new price and setting the new retail price, submitting these prices to Mr Norman for approval and then uploading the new prices into the system. This occurred. All store managers were informed of the increase and were given instructions concerning the re-ticketing and re-pricing of gold items. In the result, new regular marked prices were determined for many gold items which included nine of the contentious 17 items in the Love You Mum catalogue. The increase in the price was effective from 1 March 2006. These new prices were identified in the Love You Mum catalogue as the "was" price even though, before the publication of that catalogue, seven of those items had never been offered for sale at that price. Indeed, as noted earlier, Prouds did not put in issue that seven items of gold jewellery in the "Love You Mum" catalogue bore a "was" price in circumstances when those items had never been offered for sale at those prices. Prouds contended it was a mistake to promote those seven items with a "was" price when they had never been offered for sale at that price. Whether it was a mistake which was an aberration perhaps attributable to mismanagement by one individual (as Prouds contended) or a systemic failure on the part of Prouds because Prouds' management paid little or no regard to obligations under the Act (as ACCC contended) is presently of no real significance. I say that because the evidence, overall, plainly points to Prouds not being concerned about whether items in a promotional sale had been offered for sale at the "was" price immediately before the promotional sale commenced. Indeed, the burden of Prouds' defence in relation to the Advertised Price Representations was that it was unnecessary for an item to have been offered for sale at the "was" price immediately before the Love You Mum catalogue was published (and thus immediately before the sale commenced) and it was sufficient for it to have been offered for sale at the "was" price at some comparatively proximate point in the past. Part of this defence was to argue that the word "was" was an example of the "simple past or aorist tense" and it did "not have any connotation of when in the past the event occurred". I do not agree. As I discussed earlier in relation to the Usual Price Representations, the "was" price did not appear in isolation. It appeared in juxtaposition with a "now" price. Plainly the "now" price identified the price at which the item could be purchased during the sale period. The message conveyed by the "was" price in this context, was that the item, immediately before the sale, would have been offered for sale and purchased for the "was" price. This issue is discussed earlier (see [ 45 ] above). It was misleading to identify in the catalogue a "was" price which did not represent the price at which an item had been offered for sale and would have been purchased by the hypothetical consumer immediately before the sale commenced. The degree to which the hypothetical consumer would be misled would vary depending on the period between the time the item was last offered for sale at the regular marked price and the time the catalogue was published (and the sale commenced). In the present case it was quite misleading to identify a "was" price in the Love You Mum catalogue when the items had not been offered for sale at that price since 26 December 2005 (a period of approximately 4 months). But, in my opinion, it was also misleading to identify a "was" price in the Love You Mum catalogue when the item had not been offered for sale at that price since 1 April 2006. Even though there was a period of only approximately 3 weeks preceding the publication of the Love You Mum catalogue when five items (as identified in the pleadings) had last been offered for sale at the "was" price, the hypothetical consumer would have been led to believe that the "was" price was the price at which the items could, for reasons discussed earlier, have been bought immediately before the sale. This was not true and each of the five items could have been bought in those three weeks at reduced prices significantly less than the "was" price. I am satisfied that ACCC has established, in this respect, that Prouds engaged in misleading and deceptive conduct in contravention of the Act. ACCC sought an injunction, corrective advertising and submission to a compliance program. As to this last matter, Prouds indicated that it would consent to a compliance program if any contravention of the Act was established. It has been and accordingly an order will be made. I turn to consider the question of whether an injunction should issue and whether corrective advertising should be ordered. The draft corrective advertising was framed on the same assumption. During the final stages of the hearing, several issues emerged about the form of the injunction as originally sought. One was that ACCC indicated that if the "was" was to be understood as an offer price then the injunction should could be recast. Another was whether the injunction might require Prouds to perpetuate conduct about which ACCC complained. This led to further submissions from the parties. While I indicated during the hearing that I thought it was desirable to make final orders dealing with all aspects of the matter, I have, on reflection, decided the better course is to publish these reasons to enable the parties to consider what orders should be made to give effect to these reasons and also to address the question of costs. To assist the parties in considering the form of the relief, I make the following observations. The contravening conduct of Prouds flows from the fact that goods offered for sale in the context of dual pricing, were not offered for sale at the "was" price in the period immediately before the sale. In my opinion there would be no contravention of the Act (and assuming continued use of the dual pricing promotion manifest in the two catalogues considered in this case) if the goods had been offered for sale at the "was" price for a period of two months preceding the sale period. While there can be no precision about the length of the anterior period, it must represent a period of substance in which the price the goods were offered for sale at the "was" price and, negotiated discounts aside, would have been purchased at that price. If the period was unduly short, then the publication of the "was" price in the context of dual pricing would remain misleading or deceptive. If ACCC persists in seeking an injunction (notwithstanding the ongoing proscription by the Act of misleading or deceptive conduct) I would need to be persuaded that an injunction was, in the circumstances, necessary.

misleading and deceptive conduct dual pricing distribution and publication of jewellery catalogues where catalogues offer jewellery for a sale price described as "now" in proximity to another higher price described as "was" where the price at which items previously sold was often less than the "was" price 'was' trade practices words and phrases

2 The Tribunal proceedings comprised three separate applications heard together. 3 In Matter N2004/40 the applicant sought review of a decision dated 6 January 2004 which affirmed a determination dated 28 October 2003 ceasing liability in respect of 'aggravation of pre-existing spinal canal stenosis at L4/5' on and from 28 October 2003. 4 In Matter N2004/1095 the applicant sought review of a decision dated 19 August 2004 which affirmed a determination dated 4 August 2004 denying liability in respect of permanent impairment allegedly resulting from that condition. 5 In Matter N2004/1410 the applicant sought review of a decision dated 26 October 2004 which affirmed a determination dated 6 October 2004 that the applicant had not suffered any injury as a result of the nature and conditions of his employment with Telstra Corporation Limited ('Telstra'). 6 All three decisions related to claims for compensation submitted by the applicant following the onset of symptoms affecting his lower back and right buttock on 19 February 2003 whilst he was walking from a railway station on his way home from work. No decision is made in substitution therefor. It awaits the written submissions of the Applicant and Respondent regarding costs in this matter, which, if they are to be taken into account must be lodged with the Tribunal and served by the parties on each other on or before 22 April 2005. The Tribunal failed to make findings of it required by law. With regard to matter N2004/1410 the decision by the Tribunal that the Applicant's [sic] was not entitled to compensation attributable to the nature and conditions of his employment is so inconsistent with the evidence as to be Wednesbury unreasonable. 10 The parties agreed before the Tribunal that the decision of 6 January 2004 be set aside: it could not stand in the terms in which it was expressed, since it is not permissible to cease liability 'on and from' , thereby apparently precluding any future claims which may be made: Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628. 11 In this Court, the applicant submitted that the Tribunal had failed in its duty to either make a decision in substitution for the decision set aside, or to remit the matter for reconsideration in accordance with any direction or recommendations it deemed appropriate, as required by s 43(1) of the AAT Act. 12 In many cases, it will no doubt be true that if the Tribunal fails to make a decision in substitution for the decision it sets aside, or fails to remit the matter for reconsideration in accordance with any directions or recommendations it makes, there will have been a failure to carry out or perform the duty reposed in the Tribunal by s 43(1) of the AAT Act. However, I do not think this is such a case. The setting aside of the decision dated 6 January 2004 was by agreement of the parties. The parties obviously did not think it was necessary for a substituted decision to be made or for the matter to be remitted for reconsideration in accordance with any directions or recommendations of the Tribunal. And the reason for this is because there was already an anterior determination (anterior to the determination of 28 October 2003) of 25 June 2003 accepting liability under s 14 of the SRC Act without any fetter on, or cesser of, liability on and from a particular date. With the setting aside of the determination of 28 October 2003, the determination of 25 June 2003 remained with the consequence that it was neither necessary to make a substituted decision nor to remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal. The setting aside of the 28 October 2003 determination had the effect of restoring the matter to what it had been prior to the 28 October 2003 determination and without the need for any substitute decision or any remission of the matter for reconsideration accompanied by a direction or recommendation. 13 For the foregoing reasons, this ground of appeal must fail. Counsel for the applicant relied on the Tribunal's findings at [94] and [95] of its reasons that it '... was satisfied in relation to Mr Riddle's back pain, that there was only a temporal, and no causal connection with the employment ...' and that it '... was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003' for a submission that this involved a consideration of s 14 liability, presumably made under s 62(1). Likewise, he relied on the Tribunal's finding at [101] of its reasons that it '... was satisfied ... that Mr Riddle had not suffered a disc lesion or other injury or aggravation on the way home from work on 19 February 2003, and that his impairment was as a result of the natural progression of his degenerative lumbar spine, and was not attributable to the nature and conditions of his employment' for a submission that this involved a consideration of s 14 liability, again presumably made under s 62(1). 16 I cannot agree. The Tribunal made it clear at [9] of its reasons that liability pursuant to s 14(1) of the SRC Act was not in question, but even if it was, the Tribunal's reasons do not provide a sufficient basis for a presumption that such consideration was made under s 62(1). 17 For the foregoing reasons, this ground of appeal must fail. As noted in [16] supra, the Tribunal had earlier indicated (at [9] of its reasons) that liability pursuant to s 14(1) of the SRC Act was not in question. The liability previously accepted under s 14 was neither revoked nor disturbed. 19 What the Tribunal did was consider the facts on which the claims before it were based. It not only was entitled to undertake this consideration, but had a duty to do so. 20 Under s 24(1) of the SRC Act, Comcare is liable to pay compensation to the employee in respect of an injury, but only where the injury results in permanent impairment. This raises at least two factual enquiries which the Tribunal is required to consider: Whether there is permanent impairment? If so, is it the result of the injury? These might be considered separately as framed, or holistically: Did the injury result in permanent impairment? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 24(1). 23 Under s 19(1) of the SRC Act, Comcare is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. This raises at least two factual enquiries which the Tribunal is required to consider: Whether the employee is incapacitated for work? If so, is it the result of the injury? Again, these may be considered separately as framed, or holistically: Is the employee incapacitated for work as a result of the injury? It is only if that question is answered in the affirmative that Comcare is liable to pay compensation to the employee in respect of the injury under s 19(1) of the SRC Act. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was "an employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment. But they were not critical to the decision in either appeal that was before the Court and therefore do not think that, persuasive as they may be, having been embraced in subsequent decisions of single judges of the Court, they are binding upon me. In any event, my departure is small, even if important. I do not think that a determination under s 14 necessarily involves the final finding --- that the injury 'has resulted in' death, incapacity for work or impairment. It may, but it may not. Such a finding, it seems to me, is ultimately a matter for determination under ss 17, 19 or 24, not s 14. The wording of s 14 is '... if the injury results in death, incapacity for work or impairment' . Thus, a determination under s 14 may determine that Comcare (or a body in a similar position such as the respondent) is liable to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that it will only be so liable 'if the injury results' in death, incapacity for work or impairment. And that is what seems to have occurred in this case. The s 14 determination involved no finding that Mr Riddle's injury had resulted in death, incapacity for work or impairment. In order for compensation benefits to be payable, I must be satisfied on the balance of probabilities that the claimant sustained an injury, namely aggravation of pre-existing spinal canal stenosis at L4/5 , which has arisen out of or in the course of his employment with Telstra. I have relied on the specialist opinion of Dr Nall in making a decision and that there is no evidence presently available to indicate that the injury did not arise out of or in the course of the claimant's employment. 28 It follows, in my view, that the Tribunal's findings at [94] and [95] of its reasons --- that, in relation to Mr Riddle's back pain, there was only a temporal, and no causal connection with the employment; and that having reviewed the medical evidence, the Tribunal was not satisfied that Mr Riddle suffers permanent impairment of the lumbar spine arising out of an injury or aggravation he suffered on the way home from work on 19 February 2003 --- were not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 29 It also follows, in my view, that the Tribunal's second finding at [101] of its reasons --- that Mr Riddle's impairment was as a result of natural progression of his degenerative lumbar spine and was not attributable to the nature and conditions of his employment --- was not inconsistent with any findings underpinning the s 14 determination because none of those findings went that far. 30 On the other hand, the first finding at [101] of the Tribunal's reasons --- that Mr Riddle had not suffered a disc lesion, or other injury or aggravation on the way home from work on 19 February 2003 --- is inconsistent with a finding underpinning the s 14 determination that Mr Riddle had suffered an injury on that day, namely, aggravation of pre-existing spinal canal stenosis at L4/5 , which had arisen out of or in the course of his employment with Telstra. 31 The question of law which arises is whether the Tribunal's first finding at [101] of its reasons was open, in the face of the anterior finding underpinning the s 14 determination, and if it was not, whether it impacts on the second finding at [101] of the Tribunal's reasons, which, for the reasons given at [29], clearly was open. Counsel for the respondent submitted it was open to the Tribunal to do so. Counsel for the applicant submitted, in effect, that a s 14 determination was immune from reconsideration by the Tribunal, including the facts underpinning it, unless the reviewable decision before the Tribunal was itself a decision under s 62 reconsidering the determination under s 14. In supplementary written submissions, Mr Johnson argued that Comcare's powers under ss 69(a) and 70 of the SRC Act authorised it to make a decision as to whether Comcare continued to be liable to compensate the applicant after March 1995. Mr Johnson did not identify explicitly the sections "under" which any such decision could be made, other than ss 69(a) and 70 (neither of which is referred to in the definition of "determination" in s 60(1) of the SRC Act). However, it was implicit in his submissions that the decision to terminate Comcare's liability to compensate the applicant as from 9 March 1995 was made "under" ss 14 and 19 of the SRC Act . If this is correct, it would follow that Comcare had power to reconsider the decision under s 62. On this analysis, s 43(1) of the AAT Act conferred on the AAT the same powers and discretions as were available to the decision-maker, including the power under s 62(5) to affirm, revoke or vary the delegate's decision that Comcare's liability had ceased from 9 March 1995. In other words, both parties explicitly agreed that Comcare had not purported to exercise the power, conferred by s 62(1) of the SRC Act, to reconsider the earlier determinations on its own motion. I must confess to thinking that, although the delegate who decided to terminate the applicant's compensation for his coronary disease did not direct attention to the source of power for such a decision, the view adopted by the parties is not entirely self-evident, particularly having regard to the breadth of the power in s 62(1) and the absence of a temporal limitation on its exercise: De La Cruz v Australian Postal Commission (1997) 73 FCR 204 at 207-208 per Emmett J. Nonetheless, both parties were adamant on this question and the case proceeded on the basis that the decision of 22 March 1995 was not made pursuant to the power of reconsideration conferred by s 62(1) of the SRC Act. This analysis is consistent with the authorities giving a broad construction to the power in s 69(a) of the SRC Act to make "determinations... in relation to claims ": Australian Postal Corporation v Nguyen (1996) 71 FCR 516 at 521-522 per Jenkinson J. Moreover, leaving s 62(1) to one side, unless a decision to cease compensation from a particular date is regarded as being made "under" ss 14 or 19 (or both), the claimant adversely affected by the decision would not be entitled to have the decision reconsidered under s 62(2) and, consequently, would not be entitled to seek review by the AAT. Parliament cannot have intended this result. Mr McManamey, who appeared on behalf of the applicant, did not suggest otherwise. As I have noted, the decision-maker had power to affirm, revoke or vary the determination made by the delegate on 22 March 1995: s 62(5). For the purpose of reviewing the reconsideration decision (the "reviewable decision"), the AAT could exercise all the powers and discretions conferred by the SRC Act on the reconsideration decision-maker: AAT Act, s 43(1); Fletcher v Commissioner of Taxation (Cth) (1988) 19 FCR 442 at 453. The question is then whether the reconsideration decision-maker was entitled to affirm the decision of 22 March 1995, on the basis of a finding that the applicant's coronary disease had never been causally related to his employment. If so, the AAT was also entitled to approach the matter on this basis. The question of Comcare's liability arose because Comcare was empowered under s 69(a) of the SRC Act to make a determination "in relation to" the claim made by the applicant to Comcare in about 1990 for compensation for acceleration of his coronary heart disease. It was required to make that determination accurately (s 69(a)) and in accordance with the "substantial merits of the case" (s 72(a)). In so doing, it was open to Comcare to reach conclusions on matters of fact inconsistent with those founding the earlier s 14 determination. 36 The same question of law was recently considered by Moore J in Hannaford , supra, which I understand is presently on appeal to the Full Court. It is not a large step to say, and it would be consistent with the approach taken by the Full Court, that the power to make a finding about one of the five matters arising under s 14, inconsistent with findings earlier made in a determination under that section, exists only when the decision maker is reconsidering that determination and not otherwise. If that is correct then the Tribunal only has power to make a finding that a claimant did or did not suffer from a disease or injury and, if so, the disease or injury had the requisite connection with the employment when the reviewable decision entailed a reconsideration of the determination made under s 14. In my opinion, this is the way the Act (together with the AAT Act) was intended to operate having regard to the Full Court's construction of various provisions of the Act. That way, clear and unambiguous rights of review arise and the subject matter of the review will be clear as will the powers of the Tribunal when undertaking the review. In its submissions, the respondent raises the spectre of the revocation of a s 14 determination resulting in a consequential liability on the part of the claimant to repay money paid under one or number of determinations made under other sections. This was not the subject of any detailed submissions. Accordingly, the views I express in the following paragraph are necessarily provisional. Its decision should be set aside and the matter remitted to the Tribunal. Moore J's approach may not, as his Honour says, render the scheme of the SRC Act unworkable, but it has the potential, with respect, to render it cumbersome in determining claims for compensation under specific heads which are rejected, such as in this case, following upon a determination of liability under s 14, unless that determination is itself reconsidered (by the determining authority's own motion) under s 62(1) of the SRC Act. 41 What is said in [40], is exemplified in Hannaford itself. First, it has the potential to lead to a situation where a claimant must repay money paid under one or a number of determinations made under other sections unless the relevant body exercises its power under s 114D of the SRC Act to waive its right to recover, assuming the power of waiver under that provision so extends. 43 For the foregoing reasons, this ground of appeal must fail. As previously indicated at [16], the Tribunal was of the view that liability under s 14 was not in question and my reasons at [18] to [25] inclusive in relation to ground 3 make it clear that neither the decision of the Tribunal on the permanent impairment claims nor the decision of the Tribunal on the terms of conditions of employment claim was a decision going to s 14 liability. On the other hand, the Tribunal clearly was able to make a finding as to whether the applicant had suffered permanent impairment as a result of injury arising out of or in the course of his employment with the respondent (N2004/1095) or whether he had suffered injury as a result of the nature and conditions of his employment with the respondent (N2004/1410), since both of those questions had been the subject of both primary determinations and reviewable decisions. 45 Under this ground, first it is said that the Tribunal failed to make findings of it required by law. The Tribunal's finding that there had been a temporal connection only between the onset of the applicant's symptoms and his work precludes any finding that the applicant had suffered a work-related disease which was therefore compensable. That finding was a finding of fact: March v (E & MH) Stramare Pty Ltd [1991] HCA 12 ; (1991) 171 CLR 506 esp. per Mason CJ at 515-517. 48 As to (ii), no inconsistency exists between the Tribunal's finding that the applicant had experienced the spontaneous onset of symptoms whilst walking home from work on 19 February 2003 and the Tribunal's further finding that the nature and conditions of his employment with the respondent had not materially contributed to an aggravation of his underlying, pre-existing degenerative spinal condition. The Tribunal accepted the medical evidence that 'with Mr Riddle's type of pathology, the onset of symptoms as the applicant experienced, is not necessarily related to trauma or physical activity' (at [93]). 49 Next, under this ground, it is said that the decision of the Tribunal in matter N2004/1410 --- that the applicant was not entitled to compensation attributable to the nature and conditions of his employment --- is so inconsistent with the evidence as to be Wednesbury unreasonable. 51 That assertion wrongly presumes, however, that the only evidence relied upon by the Tribunal in arriving at that decision was that referred to in [96] --- [100] of the Tribunal's reasons for decision. The content of what was said by the Tribunal in [101] of its reasons for decision denies that presumption and evidence capable of supporting the Tribunal's conclusion was referred to in the Tribunal's reasons at [64], [69], [71] --- [74], [76] and, especially at [93]. 52 The giving by a tribunal of allegedly inadequate weight to certain matters and undue weight to others does not, itself, establish a case of unreasonableness of the kind referred to in Associated Provincial Picture Houses Ltd v Wednesbury Corporation Ltd [1947] EWCA Civ 1 ; [1948] 1 KB 223; Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. 53 A decision will be vitiated by Wednesbury unreasonableness, unless no decision-maker, acting reasonably, could have made that decision or it is shown that the decision was so unreasonable that no reasonable person could have come to it. In applying this standard a court must proceed with caution lest it exceed its supervisory role by reviewing the decision on the merits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 --- 42, per Mason J; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 36 --- 37, per Brennan J. It is not enough to show that another decision-maker might have reached a different result or even that the Court takes the view that a different decision would have been more appropriate: Eshetu at 626 --- 627, per Gleeson CJ and McHugh J; 'Friends of Hinchinbrook Society Inc v Minister for Environment (No. 2) (1997) 69 FCR 28 at 59 --- 65, per Sackville J. 54 Next, under this ground, it is said that the Tribunal provided inadequate reasons for its decision. The requirements of a s 14 decision include consideration and determination as to whether the applicant satisfied the definition of injury, disease, aggravation, impairment and or incapacity for work as defined in s 4 of the SRC Act. For the reasons already indicated, they are not. 56 Finally, under this ground, it is said that the Tribunal decisions N2004/1095, N2004/1410 and N2004/40 are internally inconsistent resulting in uncertainty. --- c. inclusive and the Tribunal's finding that there was no disturbance to the normal physiological state of the applicant on 19 February 2003. 58 For the foregoing reasons, this ground of appeal must fail. 59 It follows that the appeal must be dismissed with costs.

commonwealth employees jurisdiction of administrative appeals tribunal whether tribunal made findings on review inconsistent with findings supporting prior determination of liability not the subject of review whether tribunal may make such findings. compensation

The first applicant is the holding company of the second and third applicants and is a public company listed on the Australian Stock Exchange. The applicants operate a grocery and liquor wholesale business throughout Australia supplying grocery stock and liquor products to supermarket operators and liquor retailers which conduct 1,300 separate outlets. The first applicant also is the shareholder in a number of companies which conduct supermarket and liquor outlet businesses. It is not clear on the evidence as to how many supermarkets are owned by those companies of which the first applicant is a shareholder. It is not less than 62 but I am unable to be more precise than that. The applicants have about 20% of the grocery and liquor wholesale market. Their operators have about 20% of the retail market. Coles and Woolworths between them have 80% of the retail market. The respondent was the sole director, secretary and shareholder of two companies, Chadmar Enterprises Pty Ltd (in liquidation) and Kayso Pty Ltd (in liquidation), which between 1997 and 2004 carried on the business of supermarket operators. The applicants were the suppliers of goods on credit to those supermarkets. The second applicant initiated the winding up of those two companies. In the proceeding in which this application has been brought, the applicants claim that the respondent has threatened to disclose confidential information which came into the respondent's hands in circumstances of confidentiality. Secondly, the applicants claim that the respondent has induced suppliers and customers of the applicants to breach their contractual arrangements with the applicants by breaching confidentiality agreements to which those suppliers and customers are parties. Thirdly, it is asserted the respondent has infringed trademarks registered in the names of the first and third applicants. Fourthly, the applicants complain that various publications made by the respondent are defamatory of the applicants. Fifthly, it is claimed that the same publications constitute an injurious falsehood which has given rise to actual damage. Sixthly and lastly, the applicants complain that the respondent has contravened s 52 of the Trade Practices Act 1974 (Cth) (TPA) and s 56 of the Fair Trading Act 1977 (SA). The applicants seek damages and injunctions restraining the respondent from publishing any further statements of the kind to which objection is taken in the statement of claim filed in the proceeding. The respondent is an undischarged bankrupt and is unrepresented in this proceeding. The proceeding has a history of hard fought interlocutory applications. The applicants have pursued the respondent vigorously and relentlessly. The respondent on the other hand has fiercely defended himself. At the same time he has claimed the right to continue to publish communications highly critical of the applicants. In particular, the respondent has published on his website at least monthly a document entitled "T.I.G.A. THE INDEPENDENT GROCERS ADVOCATE" (T.I.G.A.). I have not been advised of the details of the offer which are said to be confidential except that "the offer expressed within it stands in the region of tens of millions of dollars". The offer contains a proposal that Mitre 10 and its associated company "will be combined into a new company (Mergeco) by way of scheme of arrangement". It is proposed that the first applicant will acquire 50.1% interest in Mergeco with an option to acquire the remaining shareholding in either 2012 or 2013 by way of a separate and independent scheme of arrangement. Mitre 10 has 408 separate retailers who presently are both franchisees of and shareholders in Mitre 10 and its associated company. Those shareholders are presently considering the first applicant's proposal. There is a competing proposal before those shareholders from an entity, Anchorage Capital Partners, which is also seeking a controlling interest in Mitre 10 and its associated company. The applicants' solicitor has deposed in an affidavit relied on in support of this application that Mitre 10 may be considering further offers which compete directly with the first applicant's proposal. Sometime shortly before 4 December 2009 the respondent published to 80 shareholders/franchisees of Mitre 10 and other people including Momentum Corporate, which is advising the first applicant in relation to its proposal to Mitre 10 a document entitled "T.I.G.A. THE INDEPENDENT GROCERS ADVOCATE EDITION: 12/1-2009E" (T.I.G.A. 12/1-2009). The document claims to be the 81 st edition of T.I.G.A. Metcash ... invest in, by taking shareholdings in, the bigger Mitre 10 retailers (Reitzer has reportedly, already started this intention), ... by Metcash. Metcash's profit growth, which, as in the case of groceries, may far outstrip the independent retailers profit growth that Metcash supplies. --- Reitzer seems very sure of himself [! ] --- in other words Andrew Reitzer sees Mitre 10 as Metcash's by right, and then, as Reitzer has stated, Metcash will be able to call themselves the "Champion of the Independent Hardware Retailer" !! However, it will be necessary to refer to some of the redacted statements to have an understanding of these reasons. That document came to the attention of the first applicant's group general counsel, Mr Watson, who was contacted by the Chairman of Mitre 10 who advised him that T.I.G.A. 12/1-2009 "had been received by many (if not all) members of Mitre 10". The first applicant was also contacted by the Managing Director of Momentum Corporate who advised that T.I.G.A. 12/1-2009 had been received in its office. The applicants' solicitor says that his client also believes that T.I.G.A. 12/1-2009 has been distributed to banks, media organisations and other corporate advisers. The document itself claims that it will be published on the respondent's website. That arises out of the claim in the document that "All previous editions of T.I.G.A. are available at www.met-info.net". The respondent has not disputed that that is his intention unless he be restrained. On Saturday, 5 December 2009 the first applicant filed a notice of motion in the District Registry seeking the following orders: That until further order the Respondent, his servants or agents be restrained from publishing or republishing, whether by the internet or any other means of communication, the document titled : "T.I.G.A. THE INDEPENDENT GROCERS ADVOCATE 12/1 2009" or any substantially similar document. That until further order the Respondent, his servants or agents be restrained from publishing, whether by the internet or any other means of communication, any allegation by any person that, should members of the Mitre 10 group accept a proposal by Metcash Limited to acquire a majority interest in the Mitre 10 group, those members will be subject to practices of the first applicant which will prejudice or damage the businesses of those Mitre 10 members. Providing for the costs of this Notice of Motion. For such further or other orders as this Court deems fit. The first applicant was represented by counsel and the respondent who is resident in Canberra appeared by telephone. There be liberty to the parties to apply at short notice. The question of costs be reserved. The hearing resumed before me on 9 December 2009. In the meantime, the first applicant's solicitors filed two further affidavits of the solicitors in support of the application for an interlocutory injunction. The respondent filed a lengthy affidavit in opposition to the application. Between the hearings another application was made by the first applicant in relation to a further publication made by the respondent. On Saturday, 5 December 2009 the respondent published a further T.I.G.A., being edition 12/2:2009 --- the 82 nd edition. In that publication the respondent recounted the application which had been made to me on that day which he claimed was "an attempt to silence the matters discussed by T.I.G.A. 12/1-2009". publication (12/1-2009) already in circulation. We believe that when a person reads that publication, in conjunction with the above orders, a person will clearly see what it is that drives Metcash's fears, and to which Metcash did not just put the evidence of their denial in the public forum so that stakeholders in Mitre 10 retailers could make up their own minds!! 12/2:2009 but, for reasons which I gave at that time, I refused that application: Metcash Trading Limited v Bunn [2009] FCA 1468. I am advised that Mitre 10 held meetings on Monday, 7 December 2009 and that further meetings are to be held today which may lead to the parties negotiating and seeking to agree upon an Implementation Agreement. If an agreement can be reached, the parties will need to apply to the Court and seek shareholder approvals for the schemes of arrangement which are proposed. The first applicant seeks a continuation of the interim orders made on Saturday, 5 December 2009 until at least the schemes of arrangement have been effected, which will be some time in the first quarter of 2010. The first applicant complained that the publication of T.I.G.A. 12/1-2009 ought to be restrained for three reasons. First, its publication contravened paragraph 3.5c. of the orders made by me on 9 March 2006. Secondly, the contents of the publication contravened s 52 of the TPA because a number of statements were false and therefore the publication constituted engaging in the prescribed conduct in that section. Thirdly, because the statements were false and because they had been made maliciously, in that they were made to cause the applicants damage, the publication constituted the tort of injurious falsehood. The first applicant could not bring a proceeding in defamation because of the provisions of the Defamation Act 2005 (SA): s 9(1). The structure of T.I.G.A. 12/1-2009 relies upon a claim by the respondent that because of past practices of the first applicant it may be assumed that if the first applicant were to obtain control of Mitre 10 and become the wholesaler to the Mitre 10 franchisees, the matters identified in the paragraphs numbered 1-8 may come about. That appears clear from the fifth and sixth paragraphs of the publication. The publication refers to "a well documented 'modus operandi', which has been experienced by, literally, thousands of small business people in the grocery and liquor industries over the years". In the sixth paragraph the publication refers to "Andrew Reitzer's --- Metcash's historic actions/conduct in respect to grocery and liquor independent retailers". The publication claims that because of that modus operandi and those historic actions/conduct, the matters identified in paragraphs numbered 1-8 "may ... occur, should Metcash take over Mitre 10". In the first numbered paragraph the respondent asserts that Metcash will invest in the retailers to which the paragraph refers. In the second numbered paragraph it is asserted that Metcash would encourage the suppliers to Mitre 10 to stop dealing directly with Mitre 10 retailers. In paragraphs 3 and 4 it is asserted like the introduction to the numbered paragraphs that the matters referred to may occur. In paragraph 5 the respondent asserts that the conduct "will commence". In paragraphs 6 and 7 he asserts that the conduct "would" occur. There is a tension between the introduction to the numbered paragraphs and the expressions in paragraphs 1, 2, 5, 6 and 7. In paragraph 8 the respondent asserts that the result to which he refers "may" occur, which is again consistent with the introduction to the numbered paragraphs. When the matter came before me on Saturday, 5 December 2009 there was no evidence adduced by the respondent who had only been served less than an hour before the hearing. I made the interim orders to allow the respondent to adduce any evidence upon which he would rely in opposition to the application for interlocutory injunction. I also allowed the first applicant to file any further evidence upon which it would intend to rely before the hearing of the application for the interlocutory injunction. As I have said, the first applicant filed two further affidavits; one of which exhibited an affidavit of the general counsel of the first applicant upon whose information the applicants' solicitors had relied for the affidavit which was filed on Saturday in support of the application. The other affidavit put into evidence that which I had been told by counsel for the first applicant at the hearing on Saturday. I also conclude that the first applicant does not deny the result predicated in paragraph 8 may come about. It has adduced no evidence in relation to that prediction. It follows, it seems to me, that insofar as the respondent asserts that the applicants may engage in the conduct in paragraphs numbered 1-8 there is, with the exception of those paragraphs addressed in paragraph 3, no real issue. However, the evidence of the first applicant would not support a finding that the first applicant "will" or "would" engage in the conduct in paragraphs 1, 2, 5, 6 and 7. The respondent filed a lengthy affidavit in which he exhibited a number of documents which he said supported the assertions in T.I.G.A. 12/1-2009, including each of the assertions in paragraphs numbered 1-8. He said those documents identify previous conduct from which it may be inferred that the first applicant may engage in the conduct in paragraphs numbered 1-8. Indeed, in respect to some of the documents, he said that previous conduct would support the representation that they would engage in that conduct. At the hearing yesterday, I invited both parties to advise me if they wished to adduce any further evidence either in support of or in opposition to the application. Both parties said that no further evidence would be led and I should make my decision on the material before me. The purpose of an interlocutory injunction is to preserve the status quo until trial when the rights of the parties can be determined: Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63 ; (2001) 208 CLR 199. In Castlemaine Tooheys Limited v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153, Mason ACJ identified the principles which govern the grant or refusal of an interlocutory injunction in both private and public law litigation. The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. (Footnotes omitted. Gleeson CJ and Crennan J agreed with the principles stated by Gummow and Hayne JJ and, in particular, that the proper principle for the grant of an interlocutory injunction was as stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. Foremost among those considerations is the public interest in free speech. The first applicant seeks to have this Court restrain the respondent making statements about the way in which the first applicant has carried on its business and might carry on its business if the first applicant were to succeed in having Mitre 10 accept its proposal. It seeks an order restraining the respondent's right to freedom of speech. The status quo is sometimes difficult to establish and depends upon the viewpoint one might take. Mr Livesey QC, who appeared on the second hearing, said that the status quo was effectively identified as his client's right to make a proposal to the Mitre 10 shareholders/franchisees uncontaminated by any misrepresentations made by the respondent to those shareholders/franchisees. The respondent on the other hand would say that the status quo was his right to communicate with people (shareholders/franchisees) who might be affected in the future by the way in which the applicants conduct their business. The first applicant contended that there was a serious question to be tried and even if I thought that the serious question to be tried was weak I should, because of the balance of convenience which it contended was undoubtedly in favour of the first applicant, make the orders sought. If I were to make the orders sought the respondent would not at any time prior to the approval of the schemes of arrangement be able to communicate with those persons who will vote on the proposal in the schemes of arrangement. In those circumstances, those people will not have the advantage, if it be an advantage, of knowing of the respondent's experiences with the applicants. The first applicant contends that it has established to the appropriate level of satisfaction that there is a serious question to be tried in relation to the matters referred to in paragraph 3. It also contends that there is a serious question to be tried for the whole of the remainder of the publication. I accept that if the representations and statements referred to in paragraph 3 were established to be false, the first applicant might establish the contravention of s 52 and, if damage were proved, the injurious falsehood. On the evidence as it stands, I am satisfied that there is a serious question to be tried in that regard. Whilst I am prepared to accept that the first applicant has established that there is a serious question to be tried in relation to the matters in paragraph 3, I am not by and large prepared to accept that the first applicant has made out a serious question to be tried in relation to the paragraphs numbered 1-8, except insofar as paragraph 3 relates and except insofar as the publication uses imperative expression in paragraphs 1, 2, 5, 6 and 7. The first applicant's solicitor's own evidence does not deny that the first applicant might not do exactly that which the respondent asserts, except insofar as paragraph 3 relates. The evidence only goes so far as to asserting that the first applicant has not applied its mind to those matters at this point of time. In those circumstances, I am not prepared to find that the first applicant has made out a serious question to be tried in relation to all of the numbered paragraphs in the publication. Even if I thought that the first applicant had established a weak case that there was a serious question to be tried, I would not make the orders sought on the whole of the publication and the further orders sought because, in respect to the matters not addressed in paragraph 3, I am not satisfied that the balance of convenience favours the making of those orders. The effect of those orders if they were made would be to deny the respondent for all relevant times the right to communicate with persons who might be interested in his publications. There would be no point in his communicating with them on these issues after the schemes of arrangement were implemented. If the respondent continues to have the right to communicate with those shareholders/franchisees, the first applicant can seek to challenge his views by communicating with the shareholders/franchisees in like manner. A finding therefore that the first applicant had a weak case that there was a serious question to be tried would not lead in my opinion to the making of the orders sought. Notwithstanding that an order would impinge upon the respondent's right to freedom of speech, I think the balance of convenience favours the first applicant in relation to the matters in paragraph 3. I indicated yesterday that I would make an order restraining further publications of assertions of the kind addressed in paragraph 3. I indicated that I would make an order restraining publication of the first sentence in paragraph 5 which addressed a claim of modus operandi. I also indicated consistent with that conclusion that I would make an order restraining the publication of that part of the first sentence of paragraph 6 which would indicate historical actions/conduct. In respect of paragraph 1 I indicated that the imperative "will" ought to be deleted. Moreover, there was no evidence before me of Metcash identifying any of its retailers as "barons", which is the subject of an assertion in paragraph numbered 1. I said I would make an order restraining publication of an assertion of that kind. I indicated that the imperative words "will" and "would" ought to be deleted from paragraph numbered 2. In conformity with my conclusion that the first applicant has made out a serious question to be tried in relation to the issues in paragraph 3, the claims in paragraph numbered 4 should also not be republished until further order. Similarly, because of the first applicant's evidence in paragraph 3.4, paragraph numbered 5 should not be republished at this time. I was of the opinion that the evidence did not support the claim in paragraph numbered 6 that the contractual handcuff will give rise to shorter payment terms. Lastly, I was also of the opinion that the respondent should be restrained from using the imperative language in paragraphs numbered 6 and 7, and should be obliged to express that conduct as a possibility, as he had in respect of the earlier numbered paragraphs. I was also of the opinion that the word "eradicate" should be deleted from paragraph numbered 7. Yesterday I advised the parties that the first applicant ought to bring in minutes of order to reflect those conclusions. I made it clear to both parties that those minutes of order were intended to express my reasons and were not an attempt to settle the issues between the parties. Indeed, I advised the parties that both of them could take whatever steps they wished to overturn these orders. T.I.G.A. 12/1-2009, which is set out in [11] of these reasons, has been redacted in conformity with these reasons and with the orders which I have proposed. THE INDEPENDENT GROCERS ADVOCATE 12/1-2009", or words or allegations to similar effect. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

interlocutory injunction to restrain publication injurious falsehood and contravention of trade practices act 1974 (cth) s 52 public interest in free speech preserving the status quo publication redacted. defamation

First, the first, second, and third respondents seek an order vacating the hearing date on 13 March 2006 and some consequential orders. The second notice of motion is brought by the applicants seeking to amend their statement of claim. It would be convenient to deal with the second notice of motion first. The respondents do not oppose the amendment by the applicants of their statement of claim. However, the respondents rely upon what, they say, are the extensive amendments in support of the first, second and third respondents' application to vacate the hearing date. 2 Because there is no opposition to the amendments to the statement of claim, except as to paragraph 14(c) which is not pursued by the applicants, I give leave to the applicants to file a further amended statement of claim in the form of the Minute of the Further Re-amended Statement of Claim filed in the Western Australian District Registry on 7 February 2006 except for proposed paragraph 14(c). That then leads me to a consideration of the first, second and third respondents' application to vacate the hearing date of 13 March. 3 The application has been supported by the fourth and fifth respondents who, essentially, have put two arguments - first, that if the first, second and third respondents are not ready for trial, that will prejudice the fourth and fifth respondents in the conduct of their defence. Secondly, and in any event the matter now should be adjourned because of the extensive amendments which have been allowed to the applicants' statement of claim. 4 These proceedings were commenced on 9 May 2005, initially against the first four respondents. The fifth respondent, who is employed by the fourth respondent, was joined on 27 September 2005 by order of French J. The originating application was accompanied by the affidavit of Andrew John Gilmour, who has been retained by the applicants as their expert for the purpose of these proceedings and in particular the trial. 5 Mr Gilmour exhibited to his affidavit a report which had been provided to the first applicant. The applicants sought an interlocutory injunction restraining the first, second and third respondents from disposing of real property upon which the applicants conducted their business. On 12 May 2005, upon undertakings given by the first, second and third respondents that they would not dispose of those properties, the application for interlocutory relief was dismissed. 6 The first, second and third respondents entered their appearance on 17 May 2005 and filed their first defence on 14 June 2005. The fourth respondent who is separately represented filed its defence on the same day. The first, second and third respondents filed an amended defence on 8 July 2005, expanding upon the previously filed defence and raising positive assertions not previously raised. 7 On 12 May 2005 the parties were ordered to give discovery before 11 July 2005 and provide each other with inspection of the discovered documents by 18 July 2005. The first, second and third respondents failed to comply with that order and on 25 July 2005 their solicitors were ordered to file an affidavit explaining non-compliance with that order. An affidavit explaining non-compliance was filed on 20 September 2005. 8 As I have said, in response to the applicants' notice of motion issued on 2 September 2005, the fifth respondent was joined by order of French J on 27 September 2005. On 7 September 2005 French J made further orders directing the first, second and third respondents to give further and better discovery. On 11 October 2005 an amended statement of claim was filed by the applicants and on 18 October 2005 the first, second and third respondents filed a further amended defence. On 25 October 2005 the fourth and fifth respondents filed separate defences. 9 On 1 November 2005 the applicants filed replies to the fourth and fifth respondents' defences. On 1 November 2005 the applicants provided the respondents with Mr Gilmour's further report which not only dealt with the question of the respondents' liability in this matter but, also, the applicants' damages. No further experts' reports have been provided by the applicants and the applicants' case still rests, at least in the evidential sense, upon Mr Gilmour's report of 1 November 2005. 10 On 8 November 2005 leave was given to the applicants to file yet a further amended statement of claim which was filed on the same day. No further pleadings have been filed by the respondents. On the same day, 8 November, French J ordered the applicants to file their witness statements on or before 22 November 2005; the fourth and fifth respondents to file their witness statements on or before 20 December 2005; and the first, second and third respondents to file their witness statements by 16 January 2006. His Honour also ordered the respondents to file and serve any expert's reports upon which the respondents intended to rely by 16 January 2006. 11 On 23 November 2005, French J varied the orders made on 8 November and directed the applicants to file their witness statements on or before 9 December 2005, and all respondents to file their witness statements on or before 16 January 2006. 12 That order was further varied by the consent of the parties to allow the applicants to file their witness statements by 23 December. The applicants complied with the varied orders. On 9 December 2005 the Registry wrote to each of the parties advising that it was proposed that the matter be listed for hearing for a period of seven days, commencing on Monday, 13 March 2006, and seeking advice as to the availability of the legal advisers. 13 The applicants advised that they were available for trial on that date. Mr Tait, the solicitor for the fourth and fifth respondents asked that the matter start a week later because he would be overseas until 12 March 2006, and his absence from the country might interfere with the preparation of the fourth and fifth respondents' defence. The first, second and third respondents' solicitors indicated that their clients were intending to change solicitors and that they were having difficulty contacting their clients who were in the United States. 14 A directions hearing was held by French J on 16 December 2005, when the matters of which the Registry had been advised were brought to his Honour's attention. On that date French J extended the time within which the respondents had to file and serve their experts reports to 30 January 2006. He extended the time within which all of the parties had to agree on the filing of a bundle of documents to be tendered in evidence until the same date. He listed the matter for trial on 13 March 2006 for seven days. 15 On 18 January the present solicitors for the first, second and third respondents filed a notice of change of solicitors. On 25 January 2006 the first, second and third respondents filed the notice of motion seeking to vacate the hearing date and consequential orders. The notice of motion was accompanied by affidavits of the second respondent, the third respondent and the first, second and third respondents' solicitor. 16 The proceedings, the subject of the application, relate to the sale by the first respondent to the first applicant of a business of a liquor store and video shop known as the Thirsty Point Liquor. The business was carried out at 8 Cadiz Street, Cervantes in Western Australia. The applicants claim that the respondents provided them with a brochure promoting the sale of the business. It is the applicants' claim that the brochure misrepresented the gross and net profits of the business during the financial years prior to the sale and purchase of the business. 17 It is the applicants' case that those misrepresentations induced the applicants to enter into the contract for the purchase of the business as a result of which they suffered loss and damage. It is pleaded in the Statement of Claim that the business was worth less than was paid, if not worthless. It alleged that the second and third applicants suffered further losses by reason of the acquisition by the first applicant of the business. 18 The case against the fourth and fifth respondents is that they had the responsibility of preparing the financial statements of the first respondent and, thus, became parties to the misrepresentations contained in the brochure because they were also aware of the contents of the brochure. It is pleaded that they have an accessorial liability under s 75B of the Trade Practices Act 1974 (Cth). 19 The defences contain denials and some positive assertions. First it is pleaded the applicants conducted an independent due diligence and did not rely upon the material contained in the brochure. Secondly, it is claimed that various circumstances have affected the profitability of the business since it was acquired by the applicants. Those changes, it is pleaded, account for the difference in profitability of the business, if there be a difference after purchase by the first applicant. 20 If I might say so, the case is relatively uncomplicated. It raises a number of factual issues but apart from the usual factual issues associated with cases of this kind, there are no special points of difficulty. 21 The matter was referred by French J to mediation on 12 May 2005. The mediation was to take place on 18 July 2005. In due course it was listed on 21 July 2005, adjourned until 24 August 2005 and subsequently adjourned until 14 November 2005. I think from what I have been told from the bar table that the mediation subsequently failed. I think also from what I have been told from the bar table that the matter is due for mediation again within a week or so and under the direction of the Court and a Court officer. 22 The first, second and third respondents have provided affidavits in which the second and third respondents have indicated in some detail why it is that they are not ready to proceed on 13 March 2006. The second and third respondents have been, at different times, outside the country, in the United States, and as a result they say they have had difficulty in instructing their former solicitors and now have difficulty in instructing their present solicitors. They say that they would not be ready for trial by 13 March. 23 I am not convinced that the second and third respondents were put under any difficulties by the order made by French J in December 2005, listing the matter for hearing on 13 March 2006. It seems to me that that order gave plenty of time to the second and third respondents to properly instruct their lawyers and to be ready for trial. It has to be borne in mind that when that order was made the respondents had the expert's report upon which the applicants' case almost totally relies for something like six or seven weeks. They have had sufficient time in those circumstances to instruct experts to consider the applicants' case. 24 There is nothing, my opinion, in the respondents' affidavits which would make it appropriate in the exercise of my discretion and in the interest of justice to adjourn the matter. However, all of the respondents rely upon the late amendments made by the applicants to the statement of claim as a further and independent reason why the matter should be adjourned. They say that there are matters now raised in the statement of claim which require investigation and which has taken them by surprise. It is submitted they will not be able to be properly investigated before the hearing. 25 The statement of claim is not, if I might say, with respect, an elegantly drawn document. It has not until more recently, articulated with much particularity the applicants' claim against the respondents. However, the applicants' claim against the respondents has always been contained in the expert's report that was provided by Mr Gilmour with the originating application. That expert's report may not address with exactly the same particularity the amendments which have been recently allowed but the expert's report must have brought to the attention of the respondents the heads of damages which are being sought and the sums of money which are sought by the applicants under those heads of damages. 26 I think the respondents have had adequate time to address the matters contained in the applicants' expert's report. They still have adequate time to address the matters which are now better particularised in the statement of claim and which were generally averted to in the expert's report. They should, with due diligence, be able to be ready for trial on 13 March. For those reasons I refuse the first, second and third respondents' application to adjourn the proceedings. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

application for leave to amend statement of claim and application to vacate hearing date where no opposition to proposed amendment to statement of claim whether adjournment in the interests of justice application to vacate hearing date dismissed. practice and procedure

Agreement as to order (2) If the agreement is on the terms of an order of the Court in relation to the proceedings, the Court may make an order in, or consistent with, those terms without holding a hearing or, if a hearing has started, without completing the hearing. It was a polygon claim lodged in response to a future act. Application WAD 6009 of 1998 was made under the Act as it stood prior to the commencement of the Native Title Amendment Act 1998 (Cth) (the old Act). WAD 6009 of 1998 was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the old Act ended on 10 October 1995. 3 As a result of the 1998 amendments to the Act, WAD 6009 of 1998 was taken to have been made to the Federal Court on the date of the commencement of the Native Title Amendment Act 1998 (Cth). Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3 , Item 6 of the old Act). 4 Application WAD 6113 of 1998 (The Thalanyji People WC 96/82 (No.2)) was lodged with the Tribunal pursuant to s 61 of the Act on 28 June 1996. It was lodged over the entire area of land and waters that the applicants claimed were their traditional lands. Application WAD 6113 of 1998 was made under the Act as it stood prior to the commencement of the old Act. WAD 6113 of 1998 was notified by the Registrar pursuant to s 66 of the old Act. The period after the notification day referred to in s 66 of the old Act ended on 11 April 1997. 5 As a result of the 1998 amendments to the Act, WAD 6113 of 1998 is now taken to have been made to the Federal Court on the date of the commencement of the Native Title Amendment Act 1998 (Cth). Any notification given by the Registrar pursuant to s 66 of the old Act was taken to be for that application and the same people were to be parties (see table at Sch 5, Pt 3 , Item 6 of the old Act). 6 On 10 November 1999, WAD 6009 of 1998 and WAD 6113 of 1998 were combined by an order of the Court. Pursuant to that order, WAD 6113 of 1998 was amended such that it was combined with and included WAD 6009 of 1998. WAD 6113 of 1998 was to be the lead application and the two applications were to be continued in and under the heading in that application (the Thalanyji Application). 7 Pursuant to s 66A(5) of the Act those persons who were parties to WAD 6009 of 1998 and WAD 6113 of 1998 were considered parties to the Thalanyji Application. As required by s 66A(2), parties to applications WAD 6009 of 1998 and WAD 6113 of 1998 were notified by the Tribunal of the combination. The majority of the area of the Thalanyji Application is comprised of thirteen pastoral leases, which include Urala in the north and Glen Florrie stretching beyond the southern boundary. The Ashburton River, flanked on its eastern side by the Cane River Conservation Park, bisects the area of the Thalanyji Application. The area of the Thalanyji Application also includes the town of Onslow and the abandoned "Old Onslow" townsite. The remainder of the claim area consists primarily of unallocated Crown land. The applicants have also claimed native title rights and interests over the sea and a cluster of islands extending northwest to Airlie Island. 9 The predominant physical features of the area the subject of the Thalanyji Application are alluvial, spinifex-covered plains and contrasting sandstone ranges and granite outcrops. The proposed determination provides for recognition of native title rights and interests held by the Thalanyji people in most of the application area (the determination area). The external boundaries of the determination area are described in the first schedule of the draft determination. 11 The parties have agreed to the dismissal of the application in relation to the balance of the application area (the excluded area). The parties have agreed that no determination is to be made over the excluded area. Areas which overlap with application WAD 126 of 2005 brought by the Puutu Kunti Kurrama & Pinikura applicants, application WAD 6090 of 1998 brought by the Kuruma Marthudunera applicants and application WAD 6212 of 1998 brought by the Thudgari applicants. b. The sea component of the application area extending beyond the mean low water mark including the islands and sea. c. The north eastern coastal component of the application area east of the Onslow townsite and the Onslow Road. Whilst the ethnographic evidence does not presently support the view that this area was traditional Thalanyji country, the parties have not sought a determination that native title does not exist in that area. That area was most likely traditional Nhuwala country and there may be surviving Nhuwala descendants who may in the future wish to assert a relationship with that country. As explained in [2] and [4] those periods have expired. They have filed with the Court the written agreement signed by them. • The application is for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)), and there remains no approved determination in relation to the area the subject of the proposed determination (s 68). • There are no other proceedings before the Court relating to native title determination applications that cover any part of the area the subject of the proposed determination which would otherwise require orders to be made under s 67(1) of the Act. • The form of the proposed determination complies with s 94A and s 225 of the Act. In some cases it has been exercised after the Court has reserved its decision following the hearing of all the evidence: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660. In such cases the Court has before it material on which to assess the appropriateness of the orders sought by consent. 16 At the other end of the spectrum are cases where the Court has no evidence before it of the underlying claim but only evidence of the agreement of the parties: Ward v State of Western Australia [2006] FCA 1848. 17 Between those two situations is the present type of case, namely, those cases in which the Court has heard some evidence, whether by way of preservation or early evidence, and is able to draw on that evidence in assessing the appropriateness of making the orders. An example of such a case is Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 ( Lovett ). 18 Whilst the particular circumstances of each application require individual consideration, some principles are generally applicable. The focus of the section is on the making of an agreement by the parties. This reflects the importance placed by the Act on mediation as the primary means of resolving native title applications. Indeed, Parliament has established the National Native Title Tribunal with the function of conducting mediations in such cases. The Act is designed to encourage parties to take responsibility for resolving proceedings without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6 ; [2002] FCA 660 , Ward v State of Western Australia [2006] FCA 1848. Next, the Court must have regard to the question of whether or not the parties to the proceeding, namely, those who are likely to be affected by an order, have had independent and competent legal representation. That concern would include a consideration of the extent to which the State is a party, on the basis that the State, or at least a Minister of the State, appears in the capacity of parens patriae to look after the interests of the community generally. The mere fact that the State was a party may not be sufficient. The Court may need to be satisfied that the State has in fact taken a real interest in the proceeding in the interests of the community generally. That may involve the Court being satisfied that the State has given appropriate consideration to the evidence that has been adduced, or intended to be adduced, in order to reach the compromise that is proposed. The Court, in my view, needs to be satisfied at least that the State, through competent legal representation, is satisfied as to the cogency of the evidence upon which the applicants rely. However, that is not to say that the Court would itself want to predict the State's assessment of that evidence or to make findings in relation to those matters. On the other hand, in an appropriate case, the Court may well ask to be shown the evidence upon which the parties have based their decision to reach a compromise. Either way, I would not contemplate that, where the Court is being asked to make an order under s 87, any findings would be made on those matters. The Court would look at the evidence only for the purpose of satisfying itself that those parties who have agreed to compromise the matter, particularly the State on behalf of the community generally, are acting in good faith and rationally. ... Insofar as this latter consideration [whether the agreement was entered into on an informed basis] applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109 ; [2001] FCA 1229. There is a question as to how far a State party is required to investigate in order to satisfy itself of a credible basis for an application. One reason for the often inordinate time taken to resolve some of these cases is the overly demanding nature of the investigation conducted by State parties. The scope of these investigations demanded by some States is reflected in the complex connection guidelines published by some States. The power conferred by the Act on the Court to approve agreements is given in order to avoid lengthy hearings before the Court. The Act does not intend to substitute a trial, in effect, conducted by State parties for a trial before the Court. Thus, something significantly less than the material necessary to justify a judicial determination is sufficient to satisfy a State party of a credible basis for an application. The Act contemplates a more flexible process than is often undertaken in some cases. In broad terms the learning relating to extinguishment has shown that successful applications will not interfere significantly with the rights and interests of respondent parties. To the extent that native title rights and interests are inconsistent with the rights of respondents, those latter rights will prevail: Western Australia v Ward (2002) 213 CLR 1 ; [2002] HCA 28. 23 This circumstance moderates the degree of verification required by a State respondent acting in the interests of citizens on questions such as the constitution of the relevant society at settlement, and the requirements of continuity in the acknowledgement of traditional laws and the observation of traditional customs. It is necessary to emphasise that, in the context of s 87, State respondents are not required, in effect, to conduct a trial of the application in order to satisfy the Court that it is appropriate to make the orders sought. Section 87 is designed to avoid that necessity and all the disadvantages which are involved in the conduct of litigation. 24 In the present case the starting point for consideration of the appropriateness of making the orders sought is the preservation evidence heard by the Court between 12 and 15 September 2004. Evidence was given by senior, and mostly elderly, Thalanyji people. Many were not in good health and their effort in giving evidence should be particularly acknowledged. Those witnesses were Albert Hayes, Leslie Hayes, Judy Hughes, Valerie Ashburton and Laura Hicks. Sadly one other of the elders who gave evidence has passed away. The Court travelled to, among other places, Buurabalayji, Five Mile Pool, Mount Mary, Gurruda Pool near Dickson's Crossing, Mumbarda Rocks, Gnungarnu, Wundarie Hill and Barradale. The evidence provided a firm foundation for findings, if they had become necessary, that there was and is a rich and enduring history of Thalanyji life in the area. Particularly significant and powerful evidence was given at several sites associated with the water serpent visited by the Court. A document entitled The Thalanyji People, their history and connection to country was prepared by Ms Debbie Fletcher, the Research Director at the Office of Native Title within the Western Australian Department of Treasury and Finance, to summarise the connection material accepted by the State (the Fletcher document). The normative system of the Thalanyji people is characterised by a belief that their totemic ancestors gave form to the landscape and provided the Thalanyji people with their languages, law and customs. 15. The Thalanyji people speak of being taught by their forebears about the spiritual forces that inhabit Thalanyji country, including the spiritual beings that gave the Thalanyji country its form. These creator ancestors or "old people" as they are described by the Thalanyji continue to inhabit the land and have done so since time immemorial and are the source of all tradition, custom and law. The Thalanyji people also believe that the spirits of their more recent ancestors who have passed away are also present within the country. Connection is thus with a line of human ancestors whose spirits remain in the country and who mediate the relationship between the living Thalanyji and the land. ... 19. The mythological being most commonly referred to by the claimants as inhabiting thalu [totem] places is the wanamangurra or water snake, and there are stories of its powerful reactions when thalu have been disturbed. Certain sites which are associated with the wanamangurra and through which the wanamangurra travelled are known to be dangerous places and are not supposed to be touched or talked about as it could result in sickness. An example is the important Buurabalyji site on the outskirts of the town of Onslow. The Court visited Buurabalyji during the hearing of preservation evidence and Albert Hayes said it was a very dangerous place due to the presence of wanamangurra. 25 The preservation evidence also included testimony about the continued use of language, of the enduring marriage and avoidance rules, as well as the use of the area for hunting and fishing. Many instances of current practice of laws and customs occurred during the course of the preservation hearing as evidenced by Albert Hayes' strong reaction to the Court's visit to Buurabalyji on 12 September 2004. As indicated by the Court to the parties at the end of the preservation hearing, the evidence provided a strong basis for negotiating an agreement. 26 Mr Gary Hamley is the Executive Director of the Office of Native Title. He swore an affidavit on 5 September 2008 in support of the application which sets out the process which was undertaken by the State of Western Australia in coming to the agreement. He said that the applicants' legal advisors had provided material to the State which included a genealogy prepared by Kim Barber provided in February 1999, a mediation report prepared by Kim Barber provided in May 2000, and anthropological comments and reports prepared by Dr Edward McDonald provided in December 2004, June 2005, August 2005 and, with Paul Greenfield, in June 2006. Mr Hamley also told of a two day meeting between the State and the applicants at Onslow on 10 and 11 May 2006. There were detailed discussions between the Thalanyji people and the State about the nature and extent of the Thalanyji people's continuing connection to country. Mr Ranson, who appeared at the hearing on behalf of the State, expanded on this meeting in his oral submissions and described it as a "breakthrough point in the negotiations". Such initiatives and co-operative techniques which have developed in the course of managing native title litigation point the way to helpful and positive methods by which agreement can be reached. This experience should be transmitted amongst practitioners of native title as a template for future practice. 27 Then, the State commissioned a connection report from Professor Basil Sansom which was produced in November 2006 as the result of his work in conjunction with the applicants' anthropologist. All this material, together with material obtained from the State's own resources, was then assessed in accordance with the State's 2004 Guidelines for the provision of information in support of applications for a determination of native title . The assessment was made by Ms Fletcher on the basis of material which she described in the Fletcher document. The material reflects the connection material which was accepted by the State. The document was exhibited to the affidavit of Mr Hamley. It reflected much of the evidence given at the hearing, and amply justifies the agreement which has been reached. 28 An important issue which has been addressed in much native title litigation is the significance of change in the traditional laws acknowledged and traditional customs observed by applicants. The history of the impact of white settlement on indigenous peoples means that change is an almost invariable feature of these cases. The key question is whether the law and custom can still be seen to be traditional law and traditional custom. Is the change or adaptation of such a kind that it can no longer be said that the rights or interests asserted are possessed under the traditional laws acknowledged and the traditional customs observed by the relevant peoples when that expression is understood in the sense earlier identified? 29 The application of these principles on a case by case basis allows for a good deal of flexibility in approach. Where, as in this case, parties seek orders under s 87 as the result of agreements reached after extensive negotiations, the Court is not privy to the basis on which agreement is reached. Those negotiations are confidential. In the present case the Fletcher document gives some insight into the approach taken by the State to the information in its hands. Rights to Thalanyji land were traditionally held and transmitted patrilineally at the local, estate, group level. However, in response to the dramatic decline in their population following British sovereignty and other effects of settlement, the traditional system of conferring rights and interests in Thalanyji country adapted to a system whereby today all Thalanyji people hold generalised rights to Thalanyji country, however some Thalanyji families are also responsible for certain areas in Thalanyji country and have primacy over that area. 24. These families are recognised as the primary spokespersons or custodians with responsibility for designated parts of Thalanyji country, referred to as 'special places' or 'districts'. The Thalanyji rule is that a senior member (or members) of the family may be described as being the custodian or maatha ('boss') for each special place. These people represent their families as the primary spokespersons in relation to these special places and, under Thalanyji law and custom, are to be consulted in relation to the use of this land. 25. The evidence suggests that some Thalanyji families have occupied estate group or special areas for generations. Further, members of certain Thalanyji families have also been handed responsibility for a number of other estate group areas, as well as various special places, throughout the claim area, from other Thalanyji predecessors (who often died without surviving offspring). 26. These more recent patterns of transmission of responsibilities or rights to speak for particular areas of land generally reflect an attenuation of the traditional laws of patrilineal clan inheritance to accommodate the population decline that occurred following sovereignty. The succession of present-day Thalanyji people to the country of extinct Thalanyji local groups occurred under an ongoing system of law and custom in relation to the land whereby estates of extinct local groups were cared for, and gradually succeeded to, by custodians from other Thalanyji local groups. 30 The conclusion arrived at by the State concerning the impact of the change in acknowledgment of traditional laws and observance of traditional customs concerning land holding demonstrates a liberal, flexible, fair and just application of the principles expounded in the joint judgment in Yorta Yorta . That approach is particularly appropriate to the process envisaged by the agreement making provisions of the Act such as s 87. The State is to be commended on its approach in this regard. Having said this, it should be emphasised that the Court is not in a position to know whether or not the connection material required to be provided by the applicants was excessive. There have been instances in other cases where excessive demands for information seem to have been made. As explained earlier in these reasons, that approach is inconsistent with the concept of agreement making provided by the Act. 31 In this case, all of the parties to the application were represented by independent competent lawyers. The process adopted by the State was comprehensive. The preservation evidence allowed the Court to hear the voice of the Thalanyji people directly and the evidence went a considerable way to establishing the requirements of the Act for a determination of native title. 32 The parties are to be congratulated for their efforts over a long period in arriving at this agreement. No doubt the work of the Tribunal, and particularly members Dan O'Dea and John Catlin who oversaw the mediation, were central to the positive outcome. Mr Bower, who appeared at the hearing as counsel for the applicants, described the great assistance given by the Tribunal to resolving the key problems of overlaps with other application areas. Mr Bower also described the overall approach of the State as demanding but helpful. 33 For these reasons I am satisfied that it is appropriate to act in accordance with the agreement and make the orders sought. Steps in making determination (2) The Federal Court is to take the following steps in making the determination: (a) first, it must request a representative of the persons it proposes to include in the determination of native title as the native title holders (the common law holders ) to indicate whether the common law holders intend to have the native title held in trust by: (i) nominating, in writing given to the Federal Court within a specified period, a prescribed body corporate to be trustee of the native title; and (ii) including with the nomination the written consent of the body corporate; and (b) secondly, if the common law holders give the nomination within the period, the Federal Court must determine that the prescribed body corporate is to hold the rights and interests from time to time comprising the native title in trust for the common law holders; and ... Native title held in trust (3) On the making of a determination under paragraph (2)(b), the prescribed body corporate holds, in accordance with the regulations, the rights and interests from time to time comprising the native title in trust for the common law holders. 36 On 12 September 2008 the applicants filed a nomination of Buurabalayji Thalanyji Aboriginal Corporation (the Corporation) as the prescribed body corporate to be the trustee of the native title rights and interests of the Buurabalayji Thalanyji people pursuant to s 56(2)(a)(i) of the Act. 37 On 12 September 2008 the Corporation filed a document consenting to its nomination as a prescribed body corporate and undertaking to perform the functions of a prescribed body corporate and to be trustee of the native title rights and interests for the Buurabalayji Thalanyji people pursuant to s 56(2)(b) and s 56(3) of the Act. This consent was given in compliance with the requirement of s 56(2)(a)(ii) of the Act. 38 Section 59 of the Act provides that regulations may prescribe the kinds of body corporate that may be determined under s 56(2)(b). 39 The Rule Book of the Corporation (the Rule Book) was in evidence before the Court as an annexure to the affidavit of Hugh Martin Reynoldson affirmed on 19 August 2008. 40 Regulation 4(2)(a) is satisfied by the inclusion in Sch 4 of the Rule Book of 13 named persons as founding members of the Corporation who are included in the native title determination as native title holders. 41 The requirement of reg 4(2)(b) is met by r 3.1(b) of the Rule Book which provides that one objective of the Corporation is to be and to perform the functions of a registered native title body corporate for the purpose of being the subject of a native title determination under s 56 of the Act. 42 Finally, the requirement of reg 4(2)(c) is met because the Rule Book provides in r 6.2.2 that the members of the Corporation are to be persons who have native title rights and interests in relation to the land to which the native title determination relates. They have received recognition of their ancient connection with their land to the fullest extent possible under Australian law. As referred to earlier the efforts of the old people who gave evidence must be appreciated. It was clear that the challenge and stress of calling to mind events and stories buried deep in memory was considerable. Whether it is right to impose this burden on traditional owners is a question of policy for government. For today it is a joy to mark the end of that process for the Thalanyji people. 44 At the same time this day is the beginning of a new future for the Thalanyji people. Through the orders of the Court the people of Australia recognize the long standing rights of the Thalanyji people. Those rights came to be recognized in part by the evidence of the current efforts of the community to keep the traditions alive by teaching the young people Thalanyji language, songs in relation to totemic sites, and the traditions concerning hunting, fishing and gathering, and the preparation, distribution and consumption of bush foods. The recognition of the native title of the Thalanyji people is a further foundation for the continued vitality of the laws and customs of the Thalanyji people. 45 For the Australian people generally today marks another step towards land justice for indigenous people. Each of these steps brings us nearer to a proper moral foundation of the nation. The orders reflecting the recognition of the ancient rights of the Thalanyji people will now be made in the terms agreed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

proposed consent determination s 87 of the native title act 1993 (cth) whether court is satisfied the order is within power whether it is appropriate to make orders importance placed on mediation as primary means of resolving native title applications need for power under s 87 to be exercised flexibly not necessary for respondents to conduct their own trial of the application to satisfy court flexible approach to requirement of connection and continuity in traditional laws acknowledged and traditional customs observed independent and competent legal representation requirements for proscribed body corporate ss 55 and 56 of native title act 1993 (cth) native title native title

In the first proceedings (NSD 1743/2008) (Principal Proceedings) the applicant claims that his employment was terminated by the respondent (Fairfax) in contravention of s 792(1)(a) of the Workplace Relations Act 1996 (Cth) (WR Act), which provides that it is unlawful for an employer, for a prohibited reason, or for reasons that include a prohibited reason, to terminate an employee's employment. The second proceedings (NSD 1744/2008) (Officers and Directors Proceedings) are related to the first proceedings. In the Officers and Directors Proceedings the applicant claims that each of the named respondents is liable under s 728 of the WR Act insofar as they were involved in Fairfax's contravention of s 792(1)(a) of the WR Act. Unless it is necessary to differentiate between the two proceedings, I will refer to both as the Proceedings. There can be no finding that any of the respondents in the Officers and Directors Proceedings is liable for breach of a civil remedy provision in circumstances where there is a finding that Fairfax itself did not breach a civil remedy provision. However it is unnecessary, save in one respect, to detail that history. The applicant's case in the Proceedings, when the matter was before the Federal Magistrates Court, was dismissed by a Federal Magistrate as having no reasonable prospect of success. The applicant appealed to the Federal Court and, in a considered judgment which is now reported: Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470 ; (2008) 172 FCR 96 , Jagot J concluded that, on the material before her, it was not possible to conclude that the applicant's claim had no reasonable prospects of success. In so far as her Honour had before her material concerning the facts, such material consisted of only untested allegations of fact by the applicant. In the course of reaching this conclusion, her Honour canvassed the operation of some of the relevant statutory provisions and concluded that the Federal Magistrate had adopted an unduly narrow construction of those provisions. Her Honour's judgment was in relation to the summary disposal of the proceedings. It is unnecessary to discuss the precise legal effect of her Honour's judgment as it relates to the final disposition of the applicant's case. That is because, in my opinion, the conclusions her Honour reached on the central legal issues about the scope of s 793 were correct and I will approach the matter on that basis. In these reasons, unless I indicate to the contrary or the context suggests otherwise, all references to facts constitute findings of fact. The applicant commenced employment with Fairfax in January 2006 as a Telesales Executive within the SME Group. In October/November 2006 the applicant was promoted to position of Account Manager within the Fairfax Enterprises department. In the position of Account Manager, the applicant was required to actively seek and obtain business for what was known as the Direct Guides team. The role required the applicant to sell sponsorship of guides that were written by journalists on various topics, such as the "Essential Guide to Home Loans", which are given away free to the public but may be sponsored by a commercial entity such as a retail bank. In the role of Account Manager, the applicant was directly answerable to Ms Yemee Fernandes, who was then the Sales Manager for the Direct Guides team. The decision to promote the applicant to the position of Account Manager was made by Mr Kevin Stokes, who at the time held the position of Group General Manager, Fairfax Enterprises. Mr Stokes also made the decision to terminate the applicant's employment. Mr Stokes' role was a combination of strategic development and operational management of a number of discrete business units within the Fairfax Enterprises department, which included Fairfax Books, Direct Sales as well as Direct Guides. They provide the context for the subsequent consideration of the facts. The applicant said his employment was terminated because: On 16 April 2007, he sent an e-mail to David Kirk, the then CEO of Fairfax, complaining about a number of matters which might broadly be described as victimisation. In the e-mail, the applicant said if his allegations of a "clear breach of NSW Occupational Health and Safety Law and NSW Industrial Relation[s] Law" were "not dealt with summarily", he would "have no choice but to look at other options in dealing with them"; and/or On 7 May 2007, in a meeting to discuss his work performance and behaviour, the applicant allegedly announced that " I will be getting Workcover involved "; and/or On 8 May 2007, the applicant allegedly told Ms Linda Price that " [t]hey are threatening to sack me and (I) believe I can take out a court order stopping them from sacking me. I also told Natalie Carrington yesterday that I would be making a complaint to Workcover but have decided to at least wait until after the meeting with you and Carolyn Bradley tomorrow ". Ms Price then (and still) held a senior position in Fairfax. She was the IT and Group Human Resources Director of Fairfax. The two people allegedly mentioned by the applicant in the above conversation were Natalie Carrington, who was employed at the time, as a contractor, by Fairfax as a Human Resources Manager (Fairfax Business Media) and Caroline Bradley who, at the time, was Human Resources Director (Corporate Services). Three witnesses called by Fairfax were particularly impressive. They are Mr Kirk, Ms Price and Ms Carrington, each of whom gave a clear and considered answer to virtually every question. In saying this I am not suggesting the other witnesses called by Fairfax were not being truthful. I entertain no doubt that each witness endeavoured to give an honest account of their recollections of both the events before the applicant's e-mail was sent to Mr Kirk, and the events which followed leading to the applicant's termination on 9 May 2007. I thought Ms Fernandes was, on occasions, a little too ready to answer the question too quickly during cross-examination. This may have influenced the accuracy of her answers in her oral evidence. However, having regard to her evidence, which I accept, that she had been significantly troubled by the aggressive attitude the applicant had adopted towards her in the workplace, I could understand that it may not have been comfortable for her to give evidence under cross-examination by the applicant. It is convenient, at this point, to say something about the course the final hearing took. When the trial commenced, the applicant initially refused to lead any evidence. His position then was that having regard to the judgment of Jagot J ( Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470 ; (2008) 172 FCR 96 and particularly what her Honour said at para [85]), a point had been reached where s 809 had been engaged and it was necessary for the respondents to lead evidence to prove that the alleged reason or reasons for the termination were not the reason or reasons or part of them. I indicated to the applicant that it was incumbent upon him to at least lead evidence at the trial to show that the basal facts which might engage s 809 of the WR Act could be established on his evidence. After some resistance, the applicant undertook this task which involved reading affidavits or parts of them and tendering certain documents. Senior counsel for the respondents wished to cross-examine the applicant. The applicant resisted this course. I allowed the cross-examination to commence. But shortly thereafter I decided, on reflection, that it would be procedurally fairer to require the respondents to adduce their evidence but on the basis that in due course, the applicant could lead any responsive evidence and then be cross-examined on all his evidence. The cross-examination stopped. The applicant agreed to this course and it is tolerably clear that he agreed to submit to cross-examination at the conclusion of the respondents' evidence. After the respondents concluded their evidence several days later, the applicant indicated he did not wish to call any further evidence and was not prepared to submit himself to cross-examination. Section 27 of the Evidence Act 1995 (Cth) clearly provides that a party may questions any witness, except as provided by that Act. The Evidence Act regulates the conduct of cross-examination. For example, a party may generally not cross-examine a witness that has been called in error by another party (s 40) , and improper questioning may be disallowed (s 41). Moreover, s 11 of the Evidence Act preserves the power of a court to control the conduct of a proceeding. When the applicant said he did not wish to submit himself to cross-examination, I told him that it was necessary for him to be cross-examined. There was plainly at least one issue of fact of some significance in his case that was contentious. I also told him that if he did not submit himself to cross-examination, I would disregard the evidence he led at the beginning of the trial. He continued to refuse to be cross-examined. The respondents have been denied the opportunity to test the applicant's evidence by cross-examination. The way that be can addressed is to give the applicant's evidence on contested matters no weight. In the result, there is no evidence for the applicant to which I will attribute any weight on one issue, namely the conversation he alleged took place with Ms Price on 8 May 2007, and no evidence from the applicant to which I will attribute any weight on a number of subsidiary issues concerning his behaviour at the workplace. I now address the facts. It is to be recalled that the applicant was promoted to the position of Account Manager in late 2006. Problems in the workplace involving the applicant began to emerge in late 2006 and early 2007. From both Mr Stokes' perspective and Ms Fernandes' perspective, the applicant was not, from that time, conducting himself as they both expected. He was, in effect, not performing his work as he had been instructed. In addition, Mr Stokes believed the applicant was not performing particularly well in making sales. By early March 2007 the applicant began speaking of making a complaint about events in the workplace. At various points he had conversations alluding to a complaint he had made, but it was not until 13 March 2007 that he sent an e-mail to Ms Kelly Young who was then the Human Resources Director (Heralds, Community News, Illawarra & Hunter Regions) in which he said he was making a "formal complaint". The applicant complained about bullying and intimidatory conduct on the part of other Fairfax employees. Ms Young investigated the complaint with the assistance of another employee who was replaced by Ms Carrington. By about 22 March 2007, Ms Young had reached a conclusion (embodied in a written report) about the applicant's complaint and, in substance, did not accept any of the allegations he had made. She made a recommendation in her written report that the applicant be disciplined in relation to not following a reasonable management directive and potentially placing a key account in jeopardy. Ms Young also recommended that the applicant undergo training in two respects. Ms Young met with the applicant and Ms Fernandes on 4 April 2007 to discuss the result of her investigation. The applicant plainly did not accept her conclusions and became loud, aggressive and agitated. He raised his voice and leaned in and out towards Ms Young in what she then perceived as a threatening manner. The applicant was told he could have the matter considered further by Ms Price. Ms Fernandes arranged a meeting with the applicant for 13 April 2007. They met. Ms Carrington also attended. The applicant did not accept her suggestions about how he should conduct himself. Plainly, by this time, Ms Fernandes was troubled by the applicant's attitude towards her. In an e-mail of 17 April 2007 to the applicant she said: "I do not appreciate you constantly threatening me and belittling me in front of the team". In probably April 2007, Mr Stokes has a number of conversations with Ms Carrington about the applicant's behaviour. On 16 April 2007, the applicant sent Mr Kirk an e-mail. Promoting bulling [sic] in an attempt to stop me making a formal complaint to HR (he had Yemee Fernandes and Kevin Stokes try and talk me out of making a complaint to HR by threatening me with disciplinary action). Dereliction of Duty by not having a complaint fully investigated. Bastardisation by not giving me and my team access to major accounts so we can best achieve our budgets. Dereliction of Duty - Failing to investigate a complaint. Dereliction of Duty - not investigating complaint to any professional level and not interviewing people I had complained about. (A second complaint in relation to the Luke Trigwell email as she had not investigated the first, and also a complaint about bulling [sic] by a number of FIS members). Bastardisation and Bullying - recommending to my management that disciplinary action be taken against me (yet not doing the same against people who had breached a directive from management. Also recommending to my management that I do extra presentation training (This is straight out bastardisation. Breach of protocol - Kelly organised a meeting to give me feedback to my complaint. It turned out to be a set up to try and bully and bastardise me into shutting up. She refused to give me any feedback in writing. Failing to give us access to the FIS accounts over a four month period. Bullying - (see attached email two: FW) It has been five months and they have not got us one appointment directly with any customer as they are meant to, only a couple with the agencies. The agreement and his reply sound like some sort of engagement rules for a United Nations Peace Keeping force, it's a total joke. Yemee must have felt intimidated to agree to it in the first place and then Karim slaps her in the face and hits reply all and lets everyone know he is boss. He then says Guy or PK can make changes if they wish. He is telling us that they will do what ever they want). Making defamatory and slanderous comments about me. He said my presentations are poor based on feedback from Meredith Edwards and maybe Chris Greenwood. Kelly Daly told me this is feedback he gave her and is the reason the FIS team have not been getting me appointments. (Well what is their reason for the other two sales people in my team and why did they not mention it earlier? Bullying - Directing his Account Managers (FIS Team) to breach management directives to undermine myself and my team. Bastardisation - Failing to get his team to get appointments with their customers. Bastardisation, bulling [ s ic] and breach of protocol - in the last couple of days she has sidelined me in a deal that I have been working on few months that is about to close. In doing this she has gone behind my back and breached protocol by not consulting me in rate negotiation. Previously she has threatened to sack me and on another occasion told me that if we can not work together that I have to leave the company. He eluded to the fact that if I make a complaint to HR that I would be in trouble for twice breaching company directives, one of which was a total beat up. (This took place after he had a meeting with James Hooke and after Yemee had tried to stop me from making a complaint. Enough is enough, it is time this conduct was stopped. If they are not dealt with summarily I will have no choice but to look at other options in dealing with them. In view of my ultimate factual finding about the actual reasons for the applicant's termination, it is unnecessary to determine whether the complaint at the beginning of the applicant's email about breaches of the law, and his later comment about "looking[ing] at other options in dealing with [the issues]", can be characterised as conduct comprehended by s 793(1)(j) and/or s 793(1)(k) of the WR Act. I am prepared to accept it is. Mr Kirk requested Ms Price to investigate. As noted earlier, she did so with the assistance of Ms Bradley. In the following weeks two things happened. The first was that Ms Price and Ms Bradley investigated the applicant's complaint. The second was the continued deterioration of the applicant's relationship with others in the workplace. In relation to the investigation of the applicant's complaint, Ms Bradley and Ms Young met in the morning of 24 April 2007 with the applicant to discuss the protocols of the investigation and the processes involved in conducting the investigation. During the course of the conversation, Ms Price informed the applicant that Ms Bradley would be meeting with a number of people in order to investigate the complaint. The applicant was also informed that during the investigation period, the expectation was that everyone would continue to perform their ordinary duties as normal. During the course of the investigation, Ms Bradley interviewed some, but not all, of the Fairfax employees who were identified in the applicant's complaint. During the course of the investigation Ms Bradley heard concerns expressed that the applicant was not continuing to perform his usual duties as directed at the meeting of 24 April 2007. We're also bit concerned about Yemee given Shane's behaviour recently. Shane is also upset about Yemee knowing that he has made a complaint to David Kirk. But I'm not going to meet with Shane on this issue because it's not part of, and shouldn't impact on, my investigation into his complaint. I'll need to keep out of it. I'm happy to email Shane to set up the meeting, would you like me to do that? On 2 May 2007, Ms Bradley had a conversation with Ms Young in which Ms Young asked Ms Bradley questions about the progress of the investigation. The applicant would become quite aggressive towards her, and during one-on-one conversations the applicant would become very angry and would point his finger at her. Ms Fernandes found this very distressing and was concerned that the applicant might become physically violent. She felt emotionally distressed in having to deal with the applicant personally and in having to respond to what she described as rude and blunt emails. In one of these emails, the applicant accused Ms Fernandes of lying when she stated that she did not know about the applicant's complaint to Mr Kirk. In a similar vein, Ms Carrington witnessed the applicant engaging in threatening behaviour, for example, the applicant banging the desk, getting off his seat and coming closer, going red in the face or pointing his finger. During this time, the applicant's relationship with members of other teams within Fairfax had deteriorated to a point where a number of individuals within those teams had expressed the feeling that they no longer wished to deal or work with the applicant. The decision to terminate the applicant's employment was made by Mr Stokes, who came to this decision in probably late April 2007. Towards the end of April 2007 Mr Stokes had a conversation with Ms Carrington during which the termination of the applicant's employment was raised. Ms Carrington raised the issue of "performance managing" the applicant's employment in lieu of termination. Mr Stokes did not consider performance management to be appropriate in the circumstances. Mr Stokes discussed the possible termination of the applicant's employment with Ms Young, Ms Fernandes, Robert Whitehead (who was Mr Stokes' direct superior) and James Hooke (who was Mr Whitehead's direct superior). Both Mr Whitehead and Mr Hooke supported his decision to terminate the applicant's employment. In late April or early May 2007, Ms Carrington was directed to prepare a letter terminating the applicant's employment. The final version of the termination letter that was ultimately given to the applicant (see [39] below) was in different terms to an initial draft that was prepared by Ms Carrington. In contrast to the final letter, the draft letter articulated in considerable detail the particulars of what Ms Carrington considered to be the applicant's failure to perform according to his position description and the applicant's conduct that was said to be in breach of his contract of employment. I accept Ms Carrington's explanation that the draft letter was quite lengthy given it was a document that, in effect, set out her entire thoughts on the matter, and was not necessarily the type of document that would be given to the applicant upon termination of his employment. Ms Carrington sent Mr Stokes a copy for his comment which he provided. I am satisfied that sometime in early May 2007, but before 4 May 2007 (the date on which Mr Stokes made several amendments to the draft letter) Ms Carrington had been instructed to prepare a termination letter. This finding is consistent with Mr Stokes' evidence that a decision to terminate the applicant's employment was made in the last week of April 2007 (or perhaps very early May 2007). By this stage a decision to terminate had clearly been made and Mr Stokes was merely concerned with ensuring that the termination was effected promptly and in accordance with company policy, although he did not control the process. It is necessary to refer specifically to the evidence concerning a meeting which took place at approximately 9:30am on 7 May 2007. The applicant attended this meeting along with Ms Fernandes, Ms Carrington and Mr Luke Osborn. Mr Osborn was in attendance to provide support to the applicant. The evidence of both Ms Fernandes and Ms Carrington was that the purpose of the meeting was to discuss the applicant's work performance and behaviour. The are some slight differences between the evidence of Ms Fernandes and Ms Carrington in relation to what was said at the meeting. It's your sale. I'm not on a commission structure, so whatever goes into the pot goes to you. I'm just doing my job. It's FIS that has the problem. They're blocking me from getting sales. You can't be abusing and threatening people in other business units. This goes against Fairfax's Code of Conduct. Tell me who it is? I should make a workers' compensation complaint! But you will need to follow the correct procedure if you have a workers compensation claim. At one stage the applicant leant closer to Ms Fernandes and told her to "shut up". The fact that Ms Fernandes and Ms Carrington gave slightly different accounts of the conversation that took place at the meeting is unexceptionable. The events to which both Ms Fernandes and Ms Carrington deposed had taken place 18 months before they made their affidavits. Ms Young gave evidence that in the afternoon following this meeting, she had a conversation with Ms Carrington. I am satisfied, on balance, that towards the conclusion of this meeting the applicant said words to the effect " I am going to speak to Workcover ". Given that I am satisfied that the applicant said those words, it follows that I am satisfied that, for the purposes of s 793(1)(j) of the WR Act, he proposed to make a complaint to a body (Workcover) that has the capacity under an industrial law to seek compliance with that law: see Dowling v Fairfax Media Publications Pty Ltd [2008] FCA 1470 ; (2008) 172 FCR 96 at [85] per Jagot J. Following the meeting, Ms Carrington drafted (after being given authorisation by Mr Stokes to do so) a warning letter that was to be given to the applicant. Also on 7 May 2007, Ms Bradley had a conversation with Ms Price to inform her that, following her investigation into the applicant's complaint to Mr Kirk, she had come to the conclusion that there was no basis for this complaint. On 8 May 2007, Ms Carrington attempted to organise a meeting with the applicant to provide him with the warning letter that she had drafted. The applicant refused to attend such a meeting and so Ms Carrington delivered the warning letter to the applicant at his desk, along with a number of documents, including Fairfax's Code of Conduct, the applicant's contract of employment and position description, as well as a document entitled "Shane Dowling --- Expectations Document". Present at that meeting was your manager, Yemee Fernandes, your support person Luke Osborn and HR Manager Natalie Carrington. Preparation and responsiveness to management direction including; participation in WIP's, responding to your manager in regards to pipeline progress, coming unprepared to WIP's, participation in brain storming sessions. Making derogatory, intimidatory and unfounded statements regarding the business, management and colleagues - specifically: Paul Kent has no credibility the FIS team are useless Stating that your manager was 'useless' Telling your manager to 'shut up' (during that meeting) Stating to you manager that 'I'm making you sweat' Stating that the Guides team is unprofitable Referring to your manager as a liar Aggressive and rude behaviour --- specifically Banging your fist on the desk and raising your voice to an unprofessional level during meetings when your performance and behaviour have been addressed. It will not be tolerated in the Fairfax working environment. These documents were provided to you on your commencement and are attached again for your review. While this seems curious, I am satisfied that it was the product of a number of people being involved in the processes that led to the termination and, I infer, there not being a high level of coordination between them. The applicant initially gave evidence that on 8 May 2007 he had a phone conversation with Ms Price at about 6 p.m. The applicant's evidence was that he said the words set out at par [9] above. Ms Price denied that this conversation took place. For reasons already explained, I give no weight to the applicant's evidence. I accept Ms Price's denial. At a meeting that took place on 9 May 2007, attended by Ms Price, Ms Bradley and Mr Whitehead, the applicant was informed that the complaint that he had made to Mr Kirk was without merit and that there was no basis for the allegations that the applicant had made. The applicant's employment was not terminated at this meeting, but at another meeting that was held immediately following the first meeting. At the second meeting, the applicant was handed a letter terminating his employment. Ms Carrington, Ms Price and Ms Bradley attended the meeting. Mr Whitehead also attended, in place of Mr Stokes who was away interstate on business. At the start of the meeting Ms Carrington handed the applicant a letter. This includes security pass, mobile phone, disks, keys, fuel cards, desktop computers, laptop computers, palm pilots and so on. You are also required to return any hard copy or machine readable documentation which contains confidential information. I would also like to remind you that your obligations of confidentiality to the Company continue even after your employment terminates. If you would like to discuss your superannuation or would like more information regarding superannuation, please find contact numbers below for the relevant fund used by Fairfax. It is necessary therefore to consider the reasons advanced by Fairfax for terminating the applicant's employment. As is apparent from the terms of the termination letter, the reasons advanced by Fairfax for the termination are as follows: The applicant failed to properly discharge his duties; The applicant breached his employment contract; The applicant acted in a manner that did or was likely to bring Fairfax into serious disrepute; and The applicant breached Fairfax's Code of Conduct. In his affidavit, Mr Stokes states that there were four broad matters that were of concern in relation to the applicant's performance whilst in the Direct Guides team of the Fairfax Enterprises department. They were: The applicant's limited ability to generate or grow revenue for the Fairfax Enterprises department; The applicant's willingness to follow reasonable management directions, including from his direct manger (Ms Fernandes) as well as from himself; The applicant's inability to develop strong and collaborative relationships with colleagues and clients; and The applicant's lack of trust and respect towards senior management and key team members within Fairfax. During his period of employment in the Fairfax Enterprises department, the applicant achieved limited sales. The applicant was responsible for the sale of one guide in March 2007 (worth about $135,000 in gross revenue), although a display advertising account manager assisted him on this sale. The applicant was responsible for the sale of five advertisements for a Fairfax publication known as the "Beer Bible", (worth about $20,000 in gross revenue). Again the applicant was assisted by others in finalising this sale. Mr Stokes was of the view that the applicant was the worst performing member of the Direct Guides team, evidenced by the fact that during the period of his employment, the applicant generated the lowest amounts of sales revenue of any member of the Direct Guides team. I accept that this view was genuinely held and was reasonable. The applicant was clearly a difficult employee to manage, and was very reluctant to accept help or change his sales strategy. One example of this is in relation to a sales presentation at Toyota Motor Corporation that the applicant attended along with Mr Stokes. Mr Stokes, who had considerable more sales experience than the applicant, offered the applicant advice in relation to the presentation. The applicant refused to accept any of the recommendations or advice offered. The applicant insisted that he was "going to do it my way". The applicant often refused to take instructions from Ms Fernandes, who was the applicant's direct superior. Ms Fernandes complained to Mr Stokes about the applicant's unwillingness to follow what she considered to be reasonable management directives. At times Ms Fernandes described (to Mr Stokes) the applicant as "unmanageable", while also pointing out that the applicant was argumentative, would not listen and would not provide her with the information that she had requested. The applicant also failed to follow the protocols that had been communicated to him by Mr Stokes on 12 January 2007 in relation to initiating contact with key Fairfax clients. On a number of occasions the applicant breached the relevant protocol (known as the FIS communication protocol) by directly contacting key clients of Fairfax (that is, clients that provided Fairfax with large advertising revenues, known as "FIS" clients) without firstly speaking to, or obtaining the approval of, the relevant FIS account manager. FIS account managers form part of the FIS team, which is a discrete business unit within Fairfax and is separate from the Direct Guides team. The evidence shows that applicant's conduct in directly contacting a certain client, without obtaining the prior consent of the relevant FIS account manager and after he had been warned not to do so, jeopardised Fairfax's relationship with a media agency that assisted Fairfax in obtaining advertising clients. The applicant's disregard of the FIS communication protocol exemplifies, in my opinion, the applicant's general attitude toward management and its right to issue directions. The applicant clearly suffered from an inability to develop strong and healthy working relationships within Fairfax. His relationship with his direct superior, Ms Fernandes, was, in my opinion, toxic. On many occasions the applicant shouted and belittled Ms Fernandes, and generally took on an aggressive demeanour in his dealings with her. The applicant's inability to forge good working relationships was not restricted to Ms Fernandes, however. Indeed, by May 2007, the situation had deteriorated to the point whereby individuals in other teams with Fairfax (for example, the Agency team and the FIS team) refused to work with the applicant. The applicant also had a strained relationship with certain external clients. On one occasion where a representative of a media agency that assisted Fairfax in obtaining advertising clients complained to a member of the Fairfax FIS team about the applicant's breach of the FIS protocol, the applicant responded by saying that the relevant member of the FIS team was lying and had defamed him. It is necessary to consider Mr Stokes' evidence about the matters relied on by the applicant in his allegations (set out at [9] above) concerning the reasons for his dismissal. In relation to the first allegation (namely, that the applicant's employment was terminated because of the Kirk email of 16 April 2007) the evidence was that Mr Stokes had been shown a copy of the email prior to making the decision to terminate his employment. The applicant drew Mr Stokes' attention to the draft termination letter in cross-examination, which included the sentence "[y]our email to David Kirk, CEO Fairfax, on 16 April 2007 demonstrates the lack of respect and trust you have in senior management and key teams within Fairfax". According to the applicant, the inclusion of this sentence in the draft termination letter evidences the allegation that Mr Stokes took the email to Mr Kirk into account when deciding to terminate the applicant's employment. I do not accept this is so. As noted earlier, the draft termination letter was prepared by Ms Carrington. Those words were the product of Ms Carrington and not Mr Stokes. While Mr Stokes gave evidence that he also considered that the email showed a lack of respect, I accept his denial that the making of the complaint played any role in his decision to terminate the applicant's employment. In relation to the second allegation, there is no evidence that Mr Stokes was made aware of the statement the applicant made at the meeting that took place at 9.30am on 7 May 2007. Both in his affidavit and under cross-examination, Mr Stokes denied that he was ever made aware that the applicant had said words such as " I am going to make a complaint to Workcove r". I accept his denial. Mr Stokes was cross-examined at some length by the applicant. I accept that he had concluded on reasonable grounds that the applicant was not performing in his role, had made limited sales, was a difficult employee to manage, had very poor relationships with Ms Fernandes and other Fairfax employees, breached client communication protocols and was very dismissive of management and its right to issue directions. I am satisfied that Fairfax has provided an explanation of the real reasons for the termination of the applicant's employment, which I accept were the reasons, and there is no basis for concluding that the alleged reasons played any role whatsoever in the decision to terminate, or the termination of, the applicant's employment. It follows that there can be no accessorial liability on the part of the respondents in the Officers and Directors Proceedings. Both the Principal Proceedings and the Officers and Directors Proceedings should be dismissed. The respondents sought an order that the applicant pay their costs of the Proceedings. The meaning of "proceeding" in s 347 of the then Industrial Relations Act 1988 (Cth) (which is relevantly identical to s 824(1) of the WR Act) was considered by the Full Bench of the Industrial Relations Court of Australia in Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736. There is no reason to believe that the word is used in a different sense in s 347; indeed the word in parenthesis indicates the contrary. If parliament had intended that "proceeding" should be understood, in s 347, as meaning only a principal action that commenced when the Court's jurisdiction was first invoked and concluded with final judgment, it would have been absurd to say that an appeal alone might constitute a "proceeding". Viewed in that way, the policy choice that s 347(1) reflects would be undermined since the so-called ordinary rule as to costs would often, perhaps nearly always, prevail in interlocutory matters. Only the trial of the principal action would be unassailably a proceeding in a matter arising under the Act. Such a result could not have been intended. Although a single legal controversy may give rise to several different "proceedings", in my opinion the Officers and Directors Proceedings cannot be disaggregated into its component parts in the manner suggested by the respondents. However, in view of the reach of s 824(2), discussed shortly, it is a matter that I do not need to finally resolve. The words of the s 824(1) of the WR Act require me to consider whether the proceeding was instituted vexatiously or without reasonable cause. In answering the question posed by s 824(1), I am required to undertake a qualitative assessment of the proceeding in its entirety, focussing of course on the party that "instituted" the proceeding (see Australian Workers' Union of Employees, Queensland v Etheridge Shire Council (No 2) [2009] FCA 58 at [27] per Spender J). In considering whether a proceeding was instituted vexatiously or without reasonable cause for the purpose of s 824(1) it is necessary to distinguish between the situation where an applicant has merely been unsuccessful on the case he or she has sought to propound and the situation where the applicant's case was entirely misconceived. In relation to the former category, an application is not commenced without reasonable cause simply because the applicant's arguments are rejected by the Court: R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia [1978] HCA 51 ; (1978) 140 CLR 470 at 473 per Gibbs J. However, in relation to the latter category it is likely that it can be said that the proceeding was instituted without reasonable cause such that a costs award is appropriate: Standish v University of Tasmania (1989) 28 IR 129 at 139 per Lockhart J. The comments of Wilcox J in Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264-265 are also useful in ascertaining whether a proceeding was instituted without reasonable cause. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause. The test is not subjective to the party instituting the proceedings as at the time of the institution of the proceedings. The conduct of the opposing party prior to the institution of the proceedings may be relevant in deciding whether the proceedings were instituted vexatiously or without reasonable cause. The conduct of the opposing party both prior and subsequent to the institution of proceedings may be relevant to the discretion remaining in the court. It may be difficult to satisfy the test where disputed questions of fact arise and the proceedings eventually are dismissed because the court finds facts adverse to the party instituting the proceedings. Where the test is satisfied, having regard to the general policy of the section, the court may, nevertheless, in the exercise of its discretion, make no order as to costs. The applicant had, in fact, said he proposed to make a complaint to Workcover and adverted, more generally, in the email to Mr Kirk that he might take the matter elsewhere. The mere fact that this statement was made, and that a statement was made in the email, was a very tenuous basis for concluding that, in all the circumstances, the making of either or both the statements was at least part of the reason for his dismissal . However, I do not think that the Proceedings were commenced vexatiously and, on fine balance , I do not think they were commenced without reasonable cause. I now turn to consider s 824(2) of the WR Act. The limitations that inhere in s 824(1) of the WR Act (as outlined in the preceding paragraphs) are somewhat ameliorated by s 824(2), which is cast more widely than s 824(1). Section 824(2) applies if a party "has, by an unreasonable act or omission, caused another party to the proceeding to incur costs ..." The Explanatory Memorandum describes s 824(2) (then numbered s 347(1A)) as an exception to s 824(1), which was then numbered as s 347(1)): Pre-reform subsection 347(1) provides that a party to proceedings under the WR Act shall not be ordered to pay the costs of another party unless the first party instituted the proceedings vexatiously or without reasonable cause. It would enable a court hearing proceedings in a matter arising under the WR Act to order one party to pay the costs of another party where that first party has, by unreasonable act [or] omission, caused the second party to incur otherwise unnecessary costs. A costs order under this subsection could be made irrespective of the outcome of the proceedings. Such a situation, it was said, would enliven the Court's jurisdiction to award costs to the non-defaulting party under s 824(2) of the WR Act. In Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879 ; (2007) 162 FCR 392 at [28] Tracey J made it clear that a party may potentially be liable to pay costs under s 824(2) even if it did not institute the proceeding in which the relevant conduct occurred. The power conferred by s 824(2) can be exercised irrespective of the outcome of the particular application in question, and of the proceeding in its entirety: Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534 at [16] per Young J. Justice Tracey observed that the prosecution of a hopeless case can be regarded as an "unreasonable act" for the purposes of s 824(2): Australian and International Pilots Association v Qantas Airways Ltd (No 3) at [36]. Accordingly, I proceed on the basis that s 824(2) allows costs to be awarded where an applicant has quite unreasonably joined certain respondents to a proceeding in circumstances where the proceeding itself was not instituted vexatiously or without reasonable cause. In the Officers and Directors Proceedings, the respondents other than the non-executive directors of Fairfax (the non-executive directors being the second to tenth respondents) were, or conceivably may have been, involved in the decision to terminate the applicant's employment. There was at the time these proceedings were commenced, and this remains the case, no conceivable basis for joining the non-executive directors or prosecuting the claim against them. It was not more than fanciful speculation to think that they may have been involved in the termination. Joining them and prosecuting the case against them was an unreasonable act. The applicant should pay their costs. Periodically he engaged in strident abuse of the legal representatives of Fairfax and the respondents and, in particular, their junior counsel, Ms Eastman. At no point was there any justification whatsoever for this abuse. He made allegations about me which, in other circumstances, might have given rise to contempt proceedings. He made allegations about other judges of this Court which might likewise, in other circumstances, have given rise to contempt proceedings. Some of what he said was, on its face, entirely irrational or had the appearance of being the product of an unconstrained imagination. What is important, for present purposes, is that I was and remain satisfied the applicant was capable of conducting his case. Notwithstanding the behaviour I have referred to, the applicant appeared to be able to grasp and address legal and factual issues even if, on occasions he misunderstood the law. One example of this misunderstanding was his insistence that the judgment of Jagot J, together with s 809, meant that it was unnecessary for him to call any evidence at trial whatsoever. It is possible to appreciate why the applicant adopted this position having regard to her Honour's reasons. During the trial itself the applicant mostly conducted himself unexceptionably (in the sense of not acting materially differently to many self represented litigants who, for obvious reasons, do not have a lawyer's familiarity with legal processes), although there were occasions when he did not. However his behaviour did not raise, in my mind, any question about his capacity to conduct his case: see L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 ; (2006) 233 ALR 432. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

termination of employment of the applicant whether applicant's employment was terminated for a prohibited reason whether applicant proposed to make a complaint to a body having the capacity under an industrial law to seek compliance with that law whether applicant proposed to participate in a proceeding under an industrial law whether respondent has discharged the reverse onus imposed in proceedings under s 807 of the workplace relations act 1996 (cth) whether respondent has provided an explanation of the real reason for termination of applicant's employment general restriction on costs under s 824 of the workplace relations act 1996 (cth) whether some or all of the respondents in both proceedings are entitled to costs industrial law costs

Camerons requested Krueger and Vawdrey to submit a design for a load restraint system to deal with cartage of palletised cardboard boxes produced by Amcor Fibre Packaging ("Amcor"). Krueger created a load restraint system and asserted that, after it disclosed that system to Camerons, Camerons disclosed it to Vawdrey and Vawdrey used it to win the contract with Camerons. 2 There was a hearing on liability in March 2008. Reasons for decision were published on 30 May 2008: Krueger Transport Equipment Pty Ltd [2008] FCA 803 ("the reasons for decision"). I found that as a result of Camerons' unauthorised disclosure of confidential information of Krueger to Vawdrey, Camerons misused that confidential information: at [87]-[119]. In addition, I found that Camerons authorised the infringement of Krueger's copyright in the Krueger Drawings (as defined in [3] of the reasons for decision) and Vawdrey infringed Krueger's copyright in those drawings: at [120]-[136]. 3 The question of pecuniary relief was reserved for further hearing. Krueger elected to claim damages for the loss it suffered by reason of the breach of confidence and the copyright infringement. After the reasons for decision were published, the proceeding between Krueger and the Cameron parties was settled. As a result, the claim for damages to be assessed is limited to that between Krueger and Vawdrey for copyright infringement. (2) Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits. (3) Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not. 6 Vawdrey denies it is liable to pay any monetary sum to Krueger by way of damages on the basis that it has made out a defence of innocent infringement in s 115(3) of the Copyright Act . Alternatively, Vawdrey submits that if any damages are payable, then damages are confined to limited compensatory damages for lost profits under s 115(2) of the Copyright Act and that Krueger is not entitled to additional damages under s 115(4) of the Copyright Act . I reject that contention. (Emphasis added. Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479 ; see also Boyapati v Rockefeller Management Corporation [2008] FCA 995 ; Milwell Pty Ltd v Olympic Amusements Pty Ltd [1999] FCA 63 ; (1999) 85 FCR 436 ; Sheldon & Hammond Pty Ltd v Metrokane Inc [1999] FCA 63 ; (2004) 85 FCR 436 ; Cody Opal (Australia) Pty Ltd v Dimasi (2004) 64 IPR 378 ; Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 84 FLR 101. It did not discharge that onus. 12 Vawdrey's case at trial was that (1) Camerons did not disclose the Krueger Concept (as defined in [29] and [54] of the reasons for decision) or the Krueger Drawings (as defined in [3(3)]) to Vawdrey and (2) Michael Vawdrey independently conceived of and implemented a sliding gate solution to the load restraint problem created by the Amcor cargo. That case was rejected: see [13]-[83]. As I stated in the reasons for decision, "the facts established by the objective evidence (at [70]-[78]) provide[d] a basis for inferring that Vawdrey had indirect access to the substance of the Krueger Drawings as a result of disclosure by Camerons": [132]. The question which then arose was whether Vawdrey copied a substantial part of the Krueger Drawings: [133]. The answer to that question was "yes": see [134]-[135]. 13 Vawdrey's submission at this hearing that because it did not have "direct access or reference to, or direct knowledge of, the ... Kruger Drawings ... there can be no basis to conclude that Vawdrey had direct knowledge of the ... Drawings or ... of any copyright in them" is also rejected. Merely stating the argument demonstrates the fundamental flaws in it. First, there can be copyright infringement without direct access to the copyright work, and this was such a case: see [132] of the reasons for decision, citing LED Builders Pty Ltd v Eagle Homes Pty Ltd (1996) 35 IPR 215 , 225; see also Tamawood Ltd v Henley Arch Pty Ltd (2004) 61 IPR 378 at [21]. 14 Secondly, if Vawdrey intended to rely on s 115(3) of the Copyright Act (as it did), it had to lead evidence to establish that, at the time of the infringement of Krueger's copyright, it was not aware of and had no reasonable grounds for suspecting that the act constituting the infringement was an infringement . Even if Vawdrey mistakenly thought that Camerons was authorised to instruct Vawdrey as it did, Vawdrey was required to show that it had made reasonable inquiries to confirm that, before it completed its drawings based on those instructions: Laddie, The Modern Law of Copyright and Designs (3rd ed 2000) at [39.44] (collecting cases for the proposition that the innocent infringer defence is "not available to a defendant who has made no inquiries as to the source of the material he is copying"). It did not do that. That Vawdrey did not lead evidence of that kind is not surprising. An infringing act by Vawdrey of Krueger's copyright in the Krueger Drawings (see [135] of the reasons for decision) occurred after and as a result of numerous conversations between Camerons and Vawdrey in which Camerons, as Vawdrey's own witnesses accepted, gave Vawdrey instructions: see in particular [48]-[83] and [131]-[135] of the reasons for decision. The evidence was that Camerons itself did not have any engineering expertise: at [71]. In those circumstances (i.e. where a client without engineering expertise gave precise instructions late in the design process when matters had already advanced to detailed engineering drawings), there was no basis for contending that Vawdrey did not have reasonable grounds for suspecting that the act was an infringement when it received instructions from Camerons in February 2003 to modify its drawings. On the contrary, the only reasonable assumption that Vawdrey could have made was that the ultimate source of the instructions, and the owner of the copyright in the drawings that underpinned those instructions, was some entity outside Camerons. The failure to make reasonable inquiries as to the identity of that source and Camerons' authorisation to rely on it thus precludes Vawdrey from now maintaining an innocent infringement defence. 15 In support of its innocent infringer defence, Vawdrey also submits that the First Vawdrey Drawing, which was completed prior to February 2003, was not alleged to be and was not an infringement of Krueger's copyright in any Krueger Drawing. I accept that submission. The problem, however, is that it does not alter the fact that the Vawdrey Engineering Drawings (as defined in [77] of the reasons for decision) were an act of infringement which, for the reasons set out above, was not an innocent infringement. That infringing act caused Krueger damage because it was reasonably foreseeable that, but for the infringement, Vawdrey would not have been able to win the contract with Camerons and provide a trailer with a load restraint system that conformed to the one proposed to Amcor by Camerons and accepted by Amcor. 16 Moreover, as Krueger submitted at trial of the issue of liability, although it was then unnecessary to decide the issue, there was another infringing act by Vawdrey of Krueger's copyright in the Krueger Drawings, namely the manufacture by Vawdrey of the Vawdrey trailers in April to May 2003 in accordance with the Camerons-Vawdrey contract and the successful Amcor Tender. Paul Vawdrey gave evidence that the first trailer was delivered to Camerons on 15 April 2003 and the last was delivered in late April or early May. 17 Vawdrey's innocent infringement defence also, therefore, fails for the separate and independent reason that the infringing act of manufacture of trailers occurred after Vawdrey had received indirect notice of Krueger's concerns about the infringing acts. Such notice was provided by Krueger to Camerons as early as April 2003. On 3 April 2003, Krueger sent a letter to Glen Cameron. The confidential technical drawings included a notice that they were subject to copyright owned by Krueger and that the information was required to be kept confidential. Attached is a further copy of the confidential technical drawings, with the notice in the bottom left hand corner. ... It is my understanding, after numerous telephone conversations with Martin Tindall [sic], that Krueger's confidential design concept / solution was superior to any other submitted. When your company notified us that it had been successful in winning the tender, you told us that you would be in contact with us in the not too distant future to discuss fine tuning of the specification for the drop-deck trailer and pricing for the manufacture of trailers made in accordance with Krueger's confidential technical drawings and design concept / solution. We have subsequently made many attempts to contact yourself and Martin Tindall [sic] to arrange a meeting with your company to discuss the final details of the design and to fine tune pricing. However, each time we contacted your company there were a number of excuses given as to why you were not ready to meet yet. We were therefore very disappointed to subsequently hear via the market place that your company has awarded the manufacturing contract to Vawdrey. ... Krueger believes that your company has commissioned Vawdrey to manufacture drop-deck trailers in accordance with the confidential technical drawings and design concept / solution submitted to your company by Krueger ... I would like to stress and confirm, however, that the fact that Krueger provided the confidential technical drawings and design concept / solution does not automatically entitle Cameron[]s ... or its client to use that confidential design concept / solution or those drawings. Further, to the extent that your company discloses those confidential technical drawings or design concept / solution to Vawdrey, there is a breach of the obligation of confidence ... As the reasons for decision make clear, that evidence was rejected. Mr Cameron also telephoned Paul Vawdrey in relation to his "recollections of the meeting" on 2 December 2002 (see [18]ff of the reasons for decision). In this letter, Paul Vawdrey said " I [Paul Vawdrey] suggested using one side post per pallet spacing which would form a part of load restraint for the top and bottom pallet" (emphasis added). Mr Cameron took no action to correct that statement. More relevantly for present purposes, however, is the inference that can be drawn from the 14 April letter, the Cameron-Vawdrey telephone conversation just prior to that date, and the proximity in time of those two events to the 3 April letter from Krueger to Camerons, which is that Camerons had put Vawdrey on notice that questions had been raised as to the source of the design of the load restraint system in the trailers to be manufactured by Vawdrey. (I consider that it is probable that Vawdrey was aware that it was Krueger that was raising the questions, but it is not necessary to make a finding in that regard. ) Again, there is no basis for contending, whether as alleged or otherwise, that Vawdrey had no reasonable grounds for suspecting that the act (in this case the manufacture of the trailers) was an infringement. Despite being on notice, they proceeded to manufacture the trailers without making any reasonable inquiries to confirm the source of the ideas and material that went into the trailers' load restraint design specifications. Vawdrey therefore cannot maintain an innocent infringer defence under s 115(3) of the Copyright Act . I accept Krueger's submission and reject the contention that damages should be "apportioned" between Camerons and Vawdrey. 21 In the present case, there is a single course of infringement (the creation of the Vawdrey Engineering Drawings and the resulting manufacture of trailers) of a single copyright (the Krueger Drawings). Both Camerons and Vawdrey joined in that infringement in that Vawdrey could not have completed its drawings and manufacture without receiving instructions, based on the Krueger Drawings, from Camerons, and Camerons could not have completed the infringement without the execution by Vawdrey of those instructions. Each participated in committing the wrong of which Krueger now complains and thus the liability of each for the damage sustained by Krueger as a consequence of commission of that wrong is to be determined as if each was a joint tortfeasor with the other: The Koursk [1924] P 140 , cited with approval in Louis Vuitton Malletier SA v Toea Pty Ltd [2006] FCA 1443 ; (2006) 156 FCR 158 at [149] ; see also Balkin and Davis, Law of Torts (3rd 2004) at [29.24]-[29.41]. Although the term is commonly used, the concept is not well defined. To be joint tortfeasors it is not sufficient that the independent wrongful acts of two persons have caused the same damage. Those persons are several tortfeasors. In Sir John Haydon's Case [1572] EngR 356 ; (1612) 77 ER 1150 at 1151 joint tortfeasors were described as "all coming to do an unlawful act, and of one party, the act of one is the act of all of the same party being present. " The rule goes back to when an action in trespass was principally criminal ( Sir Charles Stanley's Case [1708] EngR 26 ; (1663) 84 ER 1094) but has been extended. There are three classes of joint tort: where a party is vicariously responsible for the acts of another --- as in master and servant, principal and agent and partnership; when there is a breach of a joint duty, be it a statutory or common law duty; and concerted action. As regards the third class (concerted action) to be joint tortfeasors the unlawful act must be for a "joint purpose" ( Clark v Newsam and Edwards [1847] EngR 531 ; (1847) 154 ER 55) or "concerted action... towards a common end" ( The Koursk [1924] P140, 152). In Thompson v Australian Capital Television Pty Limited [1996] HCA 38 ; (1996) 186 CLR 574 the High Court accepted as a correct description of joint tortfeasors that given by Sargeant LJ in the The Koursk [1924] at 159-160, namely that "there must be a concurrence in the act or acts causing damage not merely a coincidence of separate acts which by their conjoined effect cause damage". So, employing the language of criminal lawyers, all persons who aid or counsel direct or join in the commission of a tort are joint tortfeasors: Pratt v British Medical Association [1919] 1 KB 244 at 254 citing Petrie v Lamont [1841] EngR 66 ; (1841) 174 ER 424 at 426. Intent, of course, is not an ingredient of the tort for we are dealing with the civil law, not criminal conduct. Their liability is joint and several as it would be if they were joint tortfeasors. 25 Dowsett J helpfully canvassed the principal tort authorities in Louis Vuitton at [148]-[170]; see also Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 , 12. In deciding whether two defendants should be held jointly liable for copyright infringement, his Honour also relied on The Koursk , concluding that it must be shown that they acted in concert; that is, that there was a "concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage": Louis Vuitton at [171]. Again, this is such a case. Camerons and Vawdrey concurred in the acts which caused Krueger the damage of which it complains; there was more than a coincidence of separate acts joining together to cause damage to Krueger. Accordingly, each of Camerons and Vawdrey is jointly and severally liable for the copyright infringement. 26 However, as Krueger accepted in this case, the amount that was received by Krueger in settlement from Camerons must be deducted from any damages awarded against Vawdrey for the same infringement in recognition of the elementary principle of tort law allowing only one recovery for a wrong: BUC International Corp v International Yacht Council Ltd (11 th Cir 2008) 571 F3d 1271, 1278; see also Baxter v Obacelo Pty Ltd [2001] HCA 66 ; (2001) 205 CLR 635 at [37] (per Gleeson CJ and Callinan J) and at [64] (per Gummow and Hayne JJ) (describing the bar against double satisfaction as a universal rule and accepting that credit must given for any amount received in settlement from a co-ordinately liable tortfeasor). Accordingly, any final award of damages must reflect a deduction of the principal sum (but not interest) received by Krueger from Camerons in settlement of the claims against the Cameron parties. The measure of damages is to be, so far as is possible, that sum which will put Krueger in the same position as it would have been in if it had not suffered the wrong: Bailey 53 FCR 110-111. 29 In valuing Krueger's damages claim, there are some essential principles: First, Krueger has the burden of proving its loss; secondly, the object is to compensate Krueger and not to punish Vawdrey; and, finally, although reported cases may be of assistance, each case must be decided on its own particular facts: Bailey 53 FCR at 111. 30 What then is the proper method for calculating the amount of loss caused by the infringement? Various methods of measuring damages for infringement of copyright have been described: see Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746 at [11] and TS&B Retail Systems Pty Ltd 158 FCR 444 at [204]-[209]. 31 One method for assessing damages is the licence fee or royalty method. Under this approach, the owner of the copyright recovers "a sum equal to the fee that would fairly be charged for use of the copyright work": TS&B at [206]. As Vawdrey properly conceded, such a method is often rejected if the court takes the view that the applicant would not have granted such a licence to the respondent because, for example, the parties are competitors or the copyright work was devised for a particular purpose and that purpose was frustrated or destroyed by the infringing use of the work by the respondent: see Bailey v Namol 53 FCR at 112 (concluding that lost profits is the better measure of damages where the copyright work was created for a specific purposes which has been frustrated by the infringement) and TS&B at [206] (stating that the a lost profits approach is preferable to a licence fee approach where the plaintiff and infringer are "in actual or potential competition in relation to the copyright work"). See also Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 at [27]-[29]; Norm Engineering Pty Ltd v Digga Australia Pty Ltd (2007) 162 FCR 1 at [257], appeal allowed in part on other grounds at 166 FCR 268. 32 During the course of the damages hearing, evidence was led of a licence arrangement between Krueger and another corporate entity unrelated to the respondents and the issues in these proceedings. As was submitted by Krueger, the terms of that licence agreement, and circumstances in which that licence agreement was executed, are not relevant to the facts and circumstances of this case and may be put to one side. There was nothing in that unrelated arrangement which provided support for the contention that the licence fee or royalty method was the appropriate method or provides assistance in the assessment of damages in the present case. Moreover, it was not suggested by Mr Meredith, the expert accountant called by Vawdrey, that such an approach was the preferable assessment of damages. That is not surprising. To adopt such a measure for assessing damages usually requires evidence of the appropriate terms and conditions of such a licence agreement in relation to the particular copyright work in question. No such evidence was led. 33 But there is a more fundamental reason why the licence fee or royalty method is not an appropriate method of assessing damages in this case. The reason is that there is nothing to suggest that, in 2003, Krueger would have granted a licence to Vawdrey to enable Vawdrey to exploit the copyright in its drawings of a trailer load restraint system. Such a suggestion runs directly counter to the fact that Krueger and Vawdrey were direct and ongoing competitors, both generally and in relation to the Amcor Tender, and the contract was for more than just the use of the copyright work. Here, the Krueger copyright work was created for the limited and specific purpose of helping Camerons win the Amcor Tender and thus securing a contract with Camerons for the manufacture of trailers conforming to the winning tender. That purpose was frustrated by the Vawdrey infringement. The plaintiff must show that he has lost sales to the defendant as a result of the infringement and quantify the loss suffered. This requires the court to explore the counterfactual hypothesis of the contracts the plaintiff would have obtained absent the infringement and the costs associated with them . Necessarily the process will involve a degree of speculation, but that is no bar to recovery. The claim is not for loss of revenue but for loss of profits. The profits to be calculated are the lost net profits. By net profits I mean revenue less all costs including variable and indirect costs, but not including income tax. Care must be taken to ensure that costs savings are brought to account. If a plaintiff sells less of his products he will have less costs and that should be treated as a gain to be offset against the lost revenue which forms the basis of the computation of lost profits. The plaintiff is also entitled to recover indirect losses (such as damage to goodwill) as long as the cause is the infringement, the loss is foreseeable and is not unduly speculative. It will often be impossible to be precise in the calculation of lost profit. If needs be, the calculation can be rough and ready, with the benefit of any doubt favouring the plaintiff. (Emphasis added. 35 Before turning to consider that hypothetical question, it is necessary to address Vawdrey's submission that the damages for the gates had to be severed from the damages for the whole trailer. the gates attached to the sliding side posts) and not damages for the loss of profits it would have earned from the sale of the whole trailer. I reject that submission. While there was, at one point, doubt about the matter, modern cases permit the recovery of any secondary loss caused by the infringement. Secondary loss would include for example loss of sales of non-copyright work that is sold with the copyright work. Again, the issue is one of causation, and perhaps also of foreseeability: Gerber Garment Technology [1995] RPC 383 ; on appeal Gerber Garment Technology Inc v Lectra Systems Ltd [1997] RPC 443. In the present case, the loss in relation to the whole trailer was foreseeable because, as I found at [69] in the reasons for decision, "the concept of restraints fitted to the side sliding poles was both innovative and key to Camerons' proposal and its ultimate success in the Tender. " That Tender was not for a load restraint system but for the supply of distribution services for, and cartage of, the Amcor cargo. That in turn, required the manufacture of trailers. From the outset, Vawdrey was aware that the successful trailer designer would manufacture trailers and, in particular, trailers with a load restraint system suitable for the cartage of the Amcor cargo. Moreover, Vawdrey was also aware from the outset of the importance of the load restraint system to the overall trailer design: see [20] of the reasons for decision. In those circumstances, I conclude that it was reasonably foreseeable that the Camerons-Vawdrey infringement of the load restraint system design would cause (and did cause) Krueger to lose not just the design for the gates, but the overall contract for the design and manufacture of trailers in accordance with the Amcor Tender. 39 For those reasons, the loss related to the gates is not severable from the overall loss in relation to the trailers. 41 Krueger called Neil Leslie Bridgman, its General Manager of Finance & Administration. Mr Bridgman calculated Krueger's damages claim on what was described as a component approach. Mr Bridgman estimated the direct material and labour costs that would have been incurred in manufacturing the trailers the subject of the dispute. As noted earlier, this exercise was hypothetical. Estimated materials and labour costs were addressed separately. In relation to the materials costs, a hypothetical bill of materials, being a list of each of the components that would have been required by Krueger to manufacture the finished goods (the trailer with the gates) and identifying the quantity of each item and the cost of that item, was prepared. Mr Bridgman estimated that the total direct costs of materials that would have been incurred in the manufacture of a trailer with a set of sliding side gates would have been $23,826.73. That amount included $2,672.73 for sign writing (a matter I will deal with presently). 42 Labour costs were estimated by identifying the individual labour activities necessary for the manufacture of the product and the number of hours required for each activity. The total number of hours required for the manufacture of a trailer with a set of sliding gates was estimated to be 276.5 hours (comprised of 262.5 hours for the trailer and 14 hours for a set of sliding gates). The total labour cost was then estimated at $8,018.50. An additional $1,000 of costs was added for material variances and indirect labour costs. The total estimated cost of the trailer was $32,845.23. Accordingly, Mr Bridgman's evidence was that in the absence of Krueger being awarded the Camerons contract, Krueger lost net profits of $448,924.96, being a per-trailer profit of $20,405.68 (sales revenue of $53,250.91 less the total costs of each trailer of $32,845.23) multiplied by 22 trailers. Put another way, the gross margin on the hypothetical manufacture and sale of the trailers the subject of the Camerons' contract was said to be in the vicinity of 40%. 43 Krueger also called Mr Donald Rankin of Pitcher Partners to give evidence. Mr Rankin was not, and did not claim to be, an independent expert. For over 15 years, he has been the external accountant engaged by Krueger to assist in the preparation of its financial accounts. Mr Rankin's evidence was substantially in line with that of Mr Bridgman. That is to say, Mr Rankin also supported the component approach, although the precise lost profit figure he gave differed slightly. Specifically, he gave three possible lost profit figures ranging from $414,703.08 to $459,572.96. For reasons that will become apparent shortly, it is not necessary to delve into the differences between the three figures or to choose one over the others. 44 As noted earlier, Vawdrey called Mr Meredith to provide expert evidence on the appropriate methodology and a calculation of the damages. Mr Meredith's evidence was that the component approach was not the appropriate methodology because of the lack of actual costings information in relation to either the trailers to be manufactured for Camerons (which, as Mr Meredith acknowledged, necessarily would not exist, given that Krueger lost the contract and thus the exercise was based on a counterfactual) or any other trailer manufactured by Krueger during the relevant period. In those circumstances, he considered it more appropriate to adopt a gross margin approach. Put another way, Mr Meredith expressed the view that, in the absence of the necessary data for the particular trailer at issue, the most accurate and reliable approach to estimating Krueger's lost profits was to rely on Krueger's actual average gross margin for all new trailers manufactured during the relevant period. The crucial assumption underpinning this approach, as Mr Meredith acknowledged, is that there be no reason why the particular gross margin Krueger would have achieved under the hypothetical Camerons contract would have differed in any significant way from the actual average gross margin. 45 To determine the actual average gross margin, Mr Meredith took two random samples. First, he took a random sample of all trailers produced by Krueger during the period, regardless of the trailer specifications, selected every twentieth trailer, and used the actual cost and revenue information to the extent available in order to calculate the individual and then average gross margin. Secondly, he undertook the margin calculation in respect of a random sample of only those trailers having specifications similar to those of the trailer that would have been manufactured for Camerons. The actual individual gross margins in the first sample varied from approximately 20% to 38%, while the individual margins in the second sample varied from approximately 21% to 32%. Overall, Mr Meredith's evidence was that the actual average gross margin was 23%, yielding a lost profit figure in the range of $260,453. 46 Mr Rankin rejected the gross margin methodology on the basis that there was a significant variation in the gross margins earned on each contract and, as a result, the application by Mr Meredith of an average gross margin to the Camerons' contract was inappropriate. In other words, Mr Rankin was of the opinion that the crucial assumption underlying Mr Meredith's view - that the gross margin on the hypothetical trailer would not have significantly differed from the average actual gross margin - should not be accepted. On the day of the damages hearing, I directed Mr Meredith and Mr Rankin to confer and prepare a joint report identifying the areas of agreement and disagreement and where there was a disagreement, the reason for it. I also asked them to consider whether they agreed on the preferable methodology and whether an alternate methodology was of any assistance. Finally, I asked them to identify any differences in relation to each methodology and if there were differences, whether those differences could be bridged and if not, why not. I had expected that process to occur earlier but for reasons which are by no means clear, it did not. At 2.15pm, they returned to Court with a joint written statement. 48 In the joint statement Mr Rankin and Mr Meredith now agreed that if the component approach was adopted, the losses suffered by Krueger were $352,329.53 including a margin for sign writing and $346,449.59 excluding a margin for sign writing. The agreed amount reflected a gross margin of approximately 30%. However, two areas of disagreement remained: (1) whether the component approach was the preferable methodology; and if not, (2) the appropriate margin to be adopted under the alternative gross margin methodology. Before turning to consider those issues, it is important to note that neither Mr Rankin nor Mr Meredith suggested that either methodology was inappropriate per se. In fact, their agreed position was that the each methodology was a "viable" methodology of assistance in assessing damages depending on the circumstances. 49 In my view, both methods have their shortcomings as applied to the instant case and I accept neither in full. With respect to the gross margin approach, Mr Meredith adopted this methodology as his preferred approach on the basis that it was the only methodology which utilised actual profit numbers. In fact, however, Mr Meredith's reference to "actual profit numbers" was itself not quite accurate because the "actual profit numbers" were in respect of a sample of six trailers (I put to one side the sample selected from among all trailers) which, of course, were not the trailers in dispute in the current proceedings. Mr Meredith's assessment of those six trailers was summarised in a table in his supplementary report. That table revealed, as noted earlier, that the gross margin for each trailer in the sample was hardly uniform, ranging from 21.21% to 32.35%. Moreover, it must be emphasised the trailers themselves were of different lengths, different types, largely different prices and none of them had any form of load restraint system similar to the system in dispute in these proceedings. 50 Notwithstanding these difficulties with the gross margin approach, what the exercise does reveal is that the actual individual margins achieved by Krueger on the manufacture and sale of each of the trailers in the sample (21.21% to 32.35%) and the average of those margins (28%) was considerably less than the 40% forecasted by Mr Bridgman or the margin of 36.9% to 40.9% suggested by Mr Rankin in respect of the hypothetical transaction. Krueger could point to no other trailer it had manufactured and sold at any time during the relevant period where it had achieved a gross margin of 40%. Moreover, Mr Krueger accepted that as part of Krueger's bid for the Camerons' contract he had discounted the sale price by $3,000.00 per trailer. Such a reduction in sale price, coupled with the actual profit figures achieved by Krueger during the relevant period, suggest that is unlikely that Krueger would have achieved a margin in the vicinity of 40% on any trailers manufactured for Camerons. 51 Any assessment of damages based on a counterfactual necessarily requires some estimation. Given the drawbacks in the individual approaches identified earlier, I consider in the circumstances that the appropriate methodology is the component approach and that Vawdrey should be ordered to pay damages to Krueger assessed at the agreed figure of $346,449.59 excluding a margin for sign writing. Given the wide variation in the actual gross margins achieved by Krueger on the manufacture during the relevant period even of trailers substantially similar to the hypothetical Camerons trailer, I cannot accept a lost profits approach that relies wholly on an average gross margin not taking into consideration the individual features and costs that would have been a part of any trailer built for Camerons. 52 At the same time, however, I should acknowledge that I have had regard to the alternative methodology and the light it sheds on the reasonableness of the 40% margin claimed by Krueger as the correct figure under the component approach. In view of the fact that there was no evidence that Krueger ever achieved a gross margin of 40% on any trailer manufactured during the relevant period, that figure must be rejected. The approximately 30% gross margin reflected in the component approach figure in the joint statement, on the other hand, falls neatly between the 23% and 40% figures preferred by each side and within the 21% to 32% range of actual gross margin figures earned by Krueger on similar trailers. As such, the agreed component figure in the joint statement is not at all unrealistic and represents, in my view, the best possible estimate in light of the available evidence. 53 Before moving on to the issue of consequential damages, I should now briefly deal with the issue of sign writing. Krueger submitted that it would have achieved a margin of 10% for the application of signs such as the Camerons logo to the trailers. Both Messrs Bridgman and Krueger gave evidence to the effect that the usual practice is to include a sign writing amount and margin in the total sales price. For its part, Vawdrey submitted that Krueger would not have been able to achieve such a margin, relying on the evidence of Paul Vawdrey that Vawdrey did not in fact receive any margin on its sign writing contract with Camerons. While Paul Vawdrey conceded that the usual practice is to include a margin for sign writing, he gave evidence that in the present case that would not have been possible because Amcor had a pre-existing relationship with another company for the provision of curtain painting and signage. Vawdrey tendered a tax invoice showing that the sign writing for the actual Camerons trailers built by Vawdrey was in fact performed by the other company directly for Camerons. Paul Vawdrey's evidence on this point was not challenged in cross-examination and I accept it. Accordingly, I have excluded a margin for sign writing in the assessment of Krueger's lost profits on the basis that Krueger would not have been able to obtain a margin on the provision of sign writing either by performing the work itself or by choosing the provider and on-charging those costs at a mark-up. In the present case, I find that it was reasonably foreseeable that infringement of the load restraint system would cause a loss of goodwill to Krueger in terms of brand-name recognition and a first-entrant advantage in connection with the load restraint system. Unsurprisingly, truck manufacturers strategically place their name on each truck they manufacture to advertise not only that they manufacture trucks but trucks of a particular size capable of carrying the customer's cargo. It is free advertising. The fact that the load restraint system in the present case could not be viewed because it was covered by the curtains is irrelevant. It is the association of the manufacturer's name with trucks and with a particular customer which generates goodwill and the possibility of new orders. It can scarcely be denied that the chance to have its name associated with Camerons and an important end-client like Amcor was a thing of value to both Krueger and Vawdrey. Moreover, the chance to be the first to market with a new and innovative load restraint system would likely have given Krueger an advantage in competing for the design of trailers for the transport of other non-standard cargos. As they say, success breeds success. So much was ultimately conceded by Vawdrey when Krueger tendered an advertisement published by Vawdrey containing a photograph of Mr Glen Cameron standing in front of a truck manufactured by Vawdrey bearing both names --- Camerons and Vawdrey. While the precise quantification of Krueger's lost goodwill is necessarily speculative to some degree, I would award it an additional sum of $10,000 in this regard. That amount represents the best assessment I can make in the circumstances of the advertising and first-entrant advantage loss that Vawdrey's infringement caused to Krueger. 55 In addition to lost goodwill, Krueger also argued that it should be awarded the sum of $59,404.89 as consequential damages in the form of mitigation costs. Specifically, Krueger claims $31,904.89 as the costs of emergency marketing undertaken "in an effort to have Krueger recognised in the market as the innovator of the Krueger concept," and $27,500 as the costs of creating demonstration trailers fitted with the Krueger Concept and offering them to various companies for free trial and evaluation. For the following reasons, I reject the claim for mitigation costs. 56 The fundamental problem with the claim for mitigation costs is that the use of the Krueger Concept by Vawdrey was not an infringing act because, as I found in the reasons for decision, it is an unprotected idea rather than a protected expression of an idea: see [130] of the reasons for decision. On the other hand, the loss suffered by Krueger for infringement of the concept as expressed in the Krueger Drawings (which were protected expressions of the slide-a-gate concept created for the specific purpose of winning the Tender and the contract with Camerons) is wholly encapsulated in the lost profits and lost goodwill from the contract that would have been obtained with the copyrighted work had it not been infringed. There was no evidence that the particular load restraint system expressed in the drawings for the Amcor Tender could be or was used other than for the cartage of the Amcor freight as specified in the Tender. Thus to the extent that mitigation costs might be recoverable at all, they would be recoverable only from Camerons as part of the damages for breach of confidence. 57 Moreover, even if the mitigation costs claimed by Krueger were theoretically cognisable in copyright, I would not find that they were either foreseeable or caused by the conduct of Vawdrey in fact. That is to say, I am not satisfied on the balance of the probabilities that Krueger would not have promoted its concept in the manner identified but for Vawdrey's conduct. Or to put the point affirmatively, I consider it probable that Krueger would have promoted its concept at the freight industry exhibition and by building demonstration trailers regardless of whether Vawdrey had appropriated the slide-a-gate concept. Furthermore, even if I accepted the causation point (which I do not), there is no evidence to suggest that it would have been reasonably foreseeable to a person in Vawdrey's position at the time of the infringing conduct that Krueger would manufacture a trailer for the freight industry exhibition as well as six demonstration trailers as a consequence of its conduct. How could Vawdrey be expected to know how many (if any) trailers Krueger would build to promote its design and for how long (if at all) it would offer them for free trial as a consequence of Vawdrey's infringement? Secondly, it is not necessary that there be a proportionate relationship between the additional damages awarded under subs (4) and the damages awarded under subs (2): Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 at 198 per Goldberg J. An award of additional damages under subs (4) is not dependent upon the adequacy or inadequacy of an award of damages under subs (2). Thirdly, the matters in subs (4)(b)(i)-(iv) inclusive are not preconditions to an award of additional damages. In other words, and using the flagrancy of the infringement as an example, the Court must have regard to the flagrancy of the infringement in determining whether to award additional damages, but is not the case that additional damages can be awarded only if the breach involves a particular degree of flagrancy. Fourthly, ...there is a distinction between conduct of a defendant after an infringement (or after being informed that he has allegedly infringed the plaintiff's copyright) and relevant to the substantive allegations against him on the one hand, and the defendant's conduct of his defence to an action for an infringement of copyright in relation to procedural matters on the other. The former matter is within the terms of s 115(4)(b)(ib) of the [Copyright] Act, whereas ... the latter matter is a matter to be taken into account in determining the appropriate order as to costs. ... Fifthly, an award under s 115(4) of the [Copyright] Act can encompass damages which at common law would be aggravated damages and exemplary damages: Bailey 53 FCR at 113-114. First, while Vawdrey's infringement was not the most flagrant it was also not innocent. Vawdrey had indirect access, in circumstances where it should have made reasonable inquiries to confirm the ultimate source and authorization, to the substance of the Krueger Drawings in creating its own drawings as a result of the disclosure by Camerons and used that disclosure to improve its drawings so that it could be awarded and could perform the contract (a non-innocent act of infringement). Then, despite being on notice of the alleged infringing act, it proceeded to manufacture trailers in accordance with the infringing drawings (another non-innocent act of infringement). 60 Secondly, there is a need to deter similar infringements of copyright. The issue posed was to design a load restraint system that would to deal with cartage of palletised cardboard boxes produced by Amcor. Although it was Krueger that solved that problem, it was Krueger's competitor Vawdrey who piggybacked on and gained the benefit of that solution. In a competitive world, this kind of conduct should be deterred. 61 Thirdly, Vawdrey benefited significantly from the infringement. Not only did it secure the Camerons' contract and earn profits that were likely in the neighbourhood of at least 20%, but it also obtained additional benefits in the form of goodwill. 62 Having regard to the matters I have identified - in particular to the need for deterrence and the benefit received by Vawdrey from the infringement - I consider that an award of additional damages is appropriate. At the same time, given that the infringement was indirect and not of the most flagrant sort, I consider that the award should also not be overly large. In the circumstances, I find that the sum of $30,000 is adequate. In fact, the reference to the "Vawdrey-type lock" was added much later than 1995 and "only in respect of the litigation". 64 I find that this conduct (separately and collectively) added significantly to the length of the trial. Moreover, it involved the use of tactics and taking of positions intended to benefit Vawdrey when Vawdrey knew that such positions and tactics were, at the very least, inconsistent with the objective evidence. Subject to what the parties have to say, I therefore propose to make the following costs orders: (1) Vawdrey pay on an indemnity basis one-third of Krueger's costs of, and incidental to, the proceedings through the end of the trial on liability; (2) Vawdrey pay on a party-party basis all of Krueger's costs of, and incidental to, the proceedings following the end of the trial on liability, excluding any costs of and incidental to Krueger's settlement with Camerons. 65 The reason I propose to award only one-third of Krueger's costs through trial against Vawdrey is that until the end of trial Camerons was also a party who would have been liable for a share of the prevailing party's costs. Indeed, it would have been liable for a greater share because, as noted earlier, Vawdrey was a respondent only in relation to the copyright claim, not the confidentiality claims. One might ask, then, whether it is more appropriate to make an indemnity costs order against Vawdrey only in relation to one half of Krueger's costs incurred in prosecuting the copyright claim. On its face, such an order would appear to more accurately capture the costs for which Vawdrey can be said to be responsible. The problem, however, is that much of the same evidence and facts was relevant to both the confidentiality and copyright claims and I foresee that it would thus be difficult, if not impossible, for the parties or a taxing master to allocate or separate costs on a claim-by-claim basis. Accordingly, and this is again subject to what the parties may say, I consider that in the circumstances the better approach is simply to order that Vawdrey pay a percentage share of Krueger's overall costs. I will instead order the parties to confer and jointly file short minutes of final orders giving effect to these reasons for decision, including orders as to costs, by 4:00pm on 20 October 2008. If the parties are unable to agree, they are to submit a joint statement by 4:00pm on 20 October 2008 identifying: (1) the point(s) of agreement; (2) the point(s) of disagreement; and (3) the respective positions of the parties on the point(s) of disagreement, in which case I will list the matter for further directions or argument as necessary. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

damages whether innocent infringement defence available where defendant had reasonable grounds to suspect that use of copyright material was not authorised but failed to make further inquiries when liability for copyright infringement is joint and several whether amount received in settlement from one joint tortfeasor must be deducted from any damages awarded against another when secondary or consequential loss such as lost goodwill or mitigation costs is recoverable circumstances in which additional damages should be awarded circumstances in which indemnity costs should be awarded based on infringing party's conduct copyright

This case is about whether such a symbol, when lawfully embroidered overseas into the external surface of an article of clothing, is protected by copyright within the provisions of the Copyright Act 1968 (Cth) so that it may not be imported for sale or sold in Australia without the consent of the person entitled to the copyright here. 2 The Polo/Lauren Company L.P. is currently the assignee of the copyright in a well-known artistic work made in 1971 by an Italian citizen, Athos Dell Torre. He produced a representation of a polo player swinging his mallet while astride a polo pony which is mobile, apparently cantering. This representation was first published in the United States of America in 1972. Since then it has been a feature which has appeared on many articles manufactured by companies associated with the names 'Polo Ralph Lauren' or one or more of them. It is common ground that the polo player logo has become a well-known trade mark associated with goods made by the design or fashion house associated with the names Polo Ralph Lauren (cf: s 120(3) of the Trade Marks Act 1995 (Cth)). I will refer to this artistic work and the version of it which is embroidered on clothing as 'the polo player logo'. 3 Since 1971 copyright in the polo player logo has been assigned on a number of occasions among the group of companies associated with the brand names of Ralph Lauren and Polo Ralph Lauren. 4 These proceedings concern the question whether Ziliani Holdings Pty Ltd and its principal, Adam Ziliani, infringed the copyright of Polo/Lauren by importing into Australia and then displaying and selling a number of articles of clothing with the polo player logo embroidered on them in two shops in Chatswood, a Sydney suburb. It is common ground that Ziliani did not have the licence or consent of Polo/Lauren to import those articles into Australia or to engage in the activity of selling them here. Mr Ziliani accepts that if Ziliani Holdings is found liable for infringing Polo/Lauren's copyright in breach of ss 37 or 38 , he too will be liable. Unless it is necessary to distinguish them, I will refer to both respondents as 'Ziliani' in these reasons. 5 Each of the articles imported by Ziliani was genuine, rather than counterfeit. It had been manufactured in the country of manufacture with the licence of the owner of the copyright in the polo player logo and then was lawfully imported into or displayed for sale in the United States of America where it was sold to Ziliani Holdings. The question here is whether the sales to and purchases by Ziliani Holdings in the United States of America entitled it to engage in 'parallel importing' of those goods into Australia: ie importing them without the licence of Polo/Lauren as the Australian licensee of the polo player logo. It is common ground that in the absence of a licence from Polo/Lauren and a defence under the Act, Ziliani would infringe any copyright in the polo player logo by importing the goods here or then trading with them: Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV [1977] HCA 52 ; (1977) 138 CLR 534. 6 Polo/Lauren claimed that Ziliani has infringed its copyright in the polo player logo here on two bases when it appeared embroidered on an article. 7 First, Polo/Lauren argued that Ziliani, from the time of their first act of importation, infringed its copyright in breach of s 37 of the Copyright Act by importing into Australia without Polo/Lauren's licence or consent each article of clothing on which the polo player logo was embroidered for the purpose of selling it by retail. Alternatively, it argued that, at least since the time Polo/Lauren or its predecessor made known to Ziliani its claim of infringement of its copyright in June 2006, Ziliani continued their importations and display for sale with knowledge of the breach of copyright. Ziliani accepted that if their defences failed they were liable on that latter basis. 8 Secondly, Polo/Lauren argued that Ziliani had infringed its copyright in breach of s 38 of the Act by selling or offering for sale each imported article on which the polo player logo appeared embroidered. 9 Ziliani raised two defences under the Act. Designers in the Ralph Lauren group select which articles will bear the polo player logo. These proceedings concern only the use of the polo player logo when it has been embroidered onto an article. Polo/Lauren argued that the polo player logo was not a 'corresponding design' or a label. It contended that it was a decorative feature of articles on which it was placed. 13 The essence of the dispute is whether Polo/Lauren's copyright in the embroidered polo player logo can be asserted to prevent Ziliani from importing and selling in Australia authentic goods it has lawfully bought in another country. The concepts involved are layered in some legal complexity and technicality. Under that agreement Polo Fashions Inc was the beneficial owner of the copyright subsisting in the polo player logo including any copyright which subsisted in Australia for the purposes of the Act. It is common ground that the polo player logo was an original artistic work when created by Mr Torre and that copyright subsists in it in Australia for the purposes of the Act. 15 In December 1984, Mr Torre and Ratti each assigned all of their then right, title and interest in the polo player logo to Polo Fashions Inc. In March 1987, Polo Fashions Inc changed its name to Polo Ralph Lauren Corporation. That New York corporation merged with a Delaware corporation that had exactly the same name in May 1997, so that the merged entity became Polo Ralph Lauren Corporation and was incorporated in Delaware. Polo/Lauren is a limited partnership incorporated under the laws of the State of New York in the United States of America. It is majority owned and controlled by Polo Ralph Lauren Corporation which is, in turn, the holding company of Polo Ralph Lauren International Inc. The latter is the general partner of Polo/Lauren. 16 On about 11 August 2006 Polo Ralph Lauren Corporation assigned to Polo/Lauren all of its right, title and interest in the polo player logo in Australia. Part of the assignment included any entitlement to seek the relief claimed in these proceedings. The Ralph Lauren group, of which Polo/Lauren is a member, is involved in the business of designing, marketing and distributing, among other things, extensive collections of clothing for men, women and children. He was responsible for the sourcing of stock for Ziliani Holdings' stores. In May 2006 Ziliani Holdings opened a shop trading under the name 'Ziliani' at 86 Archer Street, Chatswood, a commercial centre on Sydney's mid-North Shore. Since opening that store Ziliani Holdings has imported into Australia clothing bearing a reproduction of the polo player logo for the purposes of selling it in the course of conducting a retail shop business. 18 Mr Ziliani said that in the United States of America there was a market known as the 'off-price' market for clothing labels which were sold for heavily discount prices. The clothing was produced for a season earlier than the then current season, although it may be newly manufactured for the off-price market. He said that there were two large annual trade shows in the United States for the off-price market which were held in one or other of Las Vegas, New York and Miami. He had attended those shows on a number of occasions and they had hundreds of exhibitors. To his observation between 50-100 of the exhibitors had Ralph Lauren merchandise, including significant quantities bearing the polo player logo, which were available for sale. Mr Ziliani also was aware of stock being available through various wholesalers and outlet stores in the United States of America at prices which, after taking account of the landed costs of the goods in Australia and payment of freight and duties, would still enable their retail sale here at prices below the usual price for exactly the same garments which were offered by mainstream Australian retail outlets. He sought to establish a business model for Ziliani Holdings to take advantage of this price differential. He wanted to be able to offer garments to the public here at prices which were discounted substantially from those offered by his Australian competitor retail outlets. He had used this business model in trading through Ziliani Holdings and other corporations with which he was associated for about 12 years. 19 Mr Ziliani said that his policy and aim in running the business was to obtain stock, particularly in the United States of America, which was low cost but authentic in its country of origin. He had planned to select his stock from a small range of off-price market clothing of well-known designer labels, including Polo Ralph Lauren, and others such as Calvin Klein, DKNY, Tommy Hilfiger and Levi's. He was generally aware that each of those design or fashion houses had subsidiaries or authorised distributors in Australia who supplied stock to Australian retailers. As events turned out, he had only been able to obtain a substantial stock of Polo Ralph Lauren items before opening the Archer Street store. When he did open it, he chose signage and print advertising which branded the business as 'Ziliani specialising in Ralph Lauren'. At that time almost all sales from the store were of Polo Ralph Lauren group clothes. 20 Mr Ziliani said that he had a general understanding that changes to Australian law over the last 10 years had led to a relaxation of what he understood had been a prohibition against parallel importations. He understood that the original prohibition operated to prevent the importation of goods into Australia which were authentic in their place of origin if the owner of the copyright or trade mark in the goods for Australia had not consented to that importation. He explained that his understanding was not that of a lawyer, but arose from, among other sources, discussions he had with lawyers. However, I am satisfied that he was aware at all times that if whatever relaxation of the law he had in mind did not entitle Ziliani to import or sell here, then Ziliani would have infringed the copyright in the polo player logo. 21 In late May 2006, Davies Collison Cave, solicitors, wrote to Ziliani asserting infringement of Polo/Lauren's Australian trade marks by the activities conducted in the Archer Street shop. They also alleged that Ziliani had contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) and analogous provisions of the Fair Trading Act 1987 (NSW) and engaged in the tort of passing off. At that stage, no claim for breach of copyright was made. Disputes between the parties in respect of those other claims have been the subject of a settlement between them. In June 2007, the parties also entered into a deed of undertaking which resolved part of the copyright dispute. The deed contained an acknowledgment by Ziliani that they had infringed copyright in the polo player logo where it appeared in clothing they had imported or offered for sale or sold in a repeated pattern which was printed, and not embossed, woven or stitched on the relevant goods. 22 By about June 2006 Ziliani had increased the range of stock in the Archer Street store to include other design house 'labels'. He changed the wording of the signage and print advertising to read 'Ziliani --- Direct USA Importers of Ralph Lauren, Calvin Klein, Tommy Hilfiger and Levi's'. From June 2006 to about October 2006 the store sold only stock which Ziliani Holdings had acquired directly from the United States. 23 In the meantime, on 30 June 2006, Davies Collison Cave again wrote to Ziliani, this time alleging a breach of Polo/Lauren's copyright pursuant to ss 37 and 38 of the Copyright Act . The letter sought undertakings from Ziliani to cease the alleged infringements. Those undertakings were not given. These proceedings were commenced on 28 July 2006. As noted above, Polo/Lauren did not become entitled to assert copyright in the polo player logo until about 11 August 2006 when those rights were assigned to it. 24 In about October or November 2006, Ziliani again changed the signage and name of the Archer Street store to 'Brands 4 Less'. Brands 4 Less had a logo in which the first word of the name appeared at the top of a circle around the numeral '4'. Underneath that numeral the word 'Less' appears. Beneath the latter are the words 'USA importers of'. All the above words appear on a cream background. In a yellow ring around that circle there appear the brand names, each separated by a star, 'Ralph Lauren, Calvin Klein, Tommy Hilfiger, DKNY and Levi's'. When Mr Ziliani changed the signage and name, he removed the previous signage from the Archer Street store. 25 In early 2007, Ziliani Holdings opened a second store at 326 Victoria Avenue, Chatswood. For a time both stores operated concurrently, but the Archer Street store was subsequently closed and Ziliani Holdings' business is now only conducted from the Victoria Avenue address. I infer that the Victoria Avenue store trades as 'Brands 4 Less', but nothing turns on this. Those items are alleged to be infringements of Polo/Lauren's or its predecessor's (Polo Ralph Lauren Corporation) copyright. Subsequently, Mr Ziliani exhibited to his March 2007 affidavit, as examples, 11 other items of clothing with the embroidered polo player logo offered for sale by Ziliani Holdings which are alleged to infringe that copyright. 27 Each garment has a plastic thread attached to it on which at least one cardboard tag hangs. This tag was described in the evidence as a 'swing tag'. The swing tag usually has a brand name associated with the Ralph Lauren group and the particular product. It sometimes has a depiction of the polo player logo. The swing tag usually has other information on it, such as a computer readable bar-code and a price. There is no dispute between the parties that the swing tag and similar tags on the exhibits are labels and do not form the subject matter of Polo/Lauren's claim for infringement in these proceedings. It is an example of a 'polo knit shirt'. Near the left breast there is a navy-blue embroidered polo player logo. The internal label states it is 'Polo by Ralph Lauren' made in Bolivia. It has a swing tag bearing a printed polo player logo together with the words 'Polo Ralph Lauren'. B This is a pink and white horizontally striped sweater. The stripes are quite wide. The polo player logo is embroidered in pink on a white stripe across the left breast area. The internal label states it is 'Ralph Lauren Golf' made in Thailand. The swing tag does not contain the polo player logo. C This is a multi-coloured vertically striped shirt. The polo player logo is embroidered in yellow on the left breast area traversing three stripes (one a lighter blue, one a dark to navy-blue and one a white stripe). The internal label states it is 'Ralph Lauren Golf' made in Hong Kong. The swing tags do not contain any polo player logo. D This is a dark olive green, round-necked, T-shirt. It has a subtle, but differently coloured, green embroidered polo player logo above the left breast area. The internal label states it is 'Polo by Ralph Lauren' made in China. It has a swing tag with the polo player logo. E This is a shirt similar to Ex A except that it is a grey/blue colour with a red embroidered polo player logo near the left breast. The internal label states it is 'Polo by Ralph Lauren' made in Bolivia. There are two swing tags each bearing a printed polo player logo together with the words 'Polo Ralph Lauren'. F This is a shirt similar to Ex B except that it is grey in colour with a black trim around the neck and arms. There is a black embroidered polo player logo near the left breast. The internal label states it is 'Polo by Ralph Lauren' made in Honduras. The swing tag does not contain a polo player logo. G This is a shirt similar to Ex D except that it is blue coloured with a pink embroidered polo player near the left breast. The internal label states it is 'Polo by Ralph Lauren', made in China. It has a swing tag with the polo player logo. H This is a long-sleeved vertically striped blue and white collared shirt with a button-down collar. It has an embroidered polo player logo near the left breast. The logo depicts the horse in brown embroidery with a darker brown for its hooves, reins and the rider's boots. The rider's pants are embroidered in white and he has a darker blue top and a white embroidered cap. The rider's head and arm are embroidered in yellow and the mallet has a white cane with a yellow head. The internal label states it is 'Ralph Lauren' made in Hong Kong. Between the words 'Ralph Lauren' there is a polo player logo in the same silver as the embroidery as for the rest of that label. It has a swing tag with the polo player logo. J This is a pyjama top in a predominantly blue check pattern which has some red and white stripes through it. On the left breast pocket there is a navy-blue embroidered polo player logo. The internal label states 'Polo by Ralph Lauren' made in El Salvador. The swing tag has an embossed polo player logo. K This is a predominantly grey check shirt with some red and white horizontal and vertical stripes. Near the left breast there is a navy-blue embroidered polo player logo. The internal label states it is 'Ralph Lauren' made in India. Between the words 'Ralph Lauren' there is a polo player logo in the same silver as the embroidery used for the rest of that label. The swing tags do not contain a polo player logo. L This is a round-necked navy-blue long-sleeved sweater. Near the left breast there is a white embroidered polo player logo. On the outside back near the neck there is embroidered in white 'POLO TENNIS'. The internal label states that it is 'Polo by Ralph Lauren' made in Northern Mariana Islands (USA). It has a swing tag with the polo player logo. M This is a hooded sweater in a dark olive-green colour with visible light green stitching on the arms, and at the foot of the torso surrounding an external pocket on the stomach. Near the left breast there is a bluish polo player logo. The internal label states it is 'Polo by Ralph Lauren' made in Philippines. It has a swing tag with a polo player logo less noticeable than on other exhibits. N This is a scarf in a green, brown and violet tartan pattern. At one end of the scarf near the border in the middle there is a violet embroidered polo player logo against light orange and green vertical stripes which blend in with the surrounding green and purple mix of colours of the tartan. At the other end of the scarf there are two labels sewn on. One states it is 'Polo Ralph Lauren' and in the same silver embroidery as the rest of that label there is a depiction of the polo player logo between the words 'Polo' and 'Ralph'. The second label which is found underneath the first states the composition of the scarf and that it is made in England. It has a swing tag with the polo player logo. (Both these labels are in navy-blue, as are the internal labels of all the other garments which are exhibits. Close to the hem, slightly towards the front of the wearer's hip, there is a navy-blue embroidered polo player logo. Printed on the internal side of the neck of the T-shirt is 'Polo by Ralph Lauren underwear made in Honduras'. The only swing tag has the name 'Brands 4 Less'. P These are a pair of black sports socks. The socks cover the foot and a small part of the leg just below the ankle. Around where the socks would cover the wearer's leg below the ankle the polo player logo is embroidered in white. That logo is embroidered on a different side of each sock so that the wearer could wear the pair of socks with either the two logos exposed on the outside of each ankle or, by swapping the socks, on the inside. A cardboard wrapping surrounds the two socks. On one face of the cardboard wrapping it states 'Polo Ralph Lauren', and on the other, on a white adhesive label, there is a statement 'Copyright Polo Ralph Lauren Corp' and statements of the composition, washing instructions and the fact that the socks were made in Korea. The catalogue recorded that Ralph Lauren had introduced the original polo knit shirt in 1972. It was marketed in 24 colours and the catalogue said that it had 'instantly acquired status as an internationally recognized icon'. The website offered the opportunity to persons to purchase garments, including polo shirts. A 'create your own' feature was offered on the website. It provided potential purchasers with the opportunity of creating their own version of a range of products offered by the Ralph Lauren group including the polo knit shirt. The website allowed people to create their own crew-necked T-shirt, with a logo in a similar position to that as appears in Ex O, but with the garment having a different neck. The website also appeared to depict a garment which is identical to or very similar to Ex O as a V-neck T-shirt available in a three-pack in the men's sleepwear and underwear range. The website noted that one of the features of that garment was that 'our embroidered pony accents the hem'. The same area of the website displayed a vista plaid pyjama top which had the polo player logo on the left breast pocket and stated that one of its features was 'embroidered polo player at the pocket'. Purchasers could also create other garments such as a long sleeved 'Oxford' shirt, a classic-fit garment-dyed poplin shirt (a long-sleeved sport shirt) and items in the 'pink pony' range of women's shirts. Various colours of the polo player logo were also offered. 34 The pink pony range depicted a pink polo player logo on women's garments. Examples were shown with the polo player logo in pink but in a size considerably larger than that which appears in any of the clothing the importation and dealing with which is complained of in these proceedings. The polo player logo in the pink pony style appears both in the form as drawn originally by Mr Torre, the subject of the present claim for infringement of copyright, and also with the polo player image reversed so that rather than appearing to be moving from the left hand side towards the right hand side of the garment, the player and the horse are moving from the right hand side to the left hand side. The pink pony website section depicts, in many instances, the logo in either representation in the middle of the wearer's chest as a quite large feature of the garment. 35 In the 'blue label' section of the women's fashion area of the website, a purchaser could create her own 'big pony' mesh dress. There were similar representations of 'oversized' ponies in the men's fashion section described as 'big pony' items, for example a custom fit multicolour big pony polo shirt which depicted an oversized version of the polo player logo embroidered in multiple colours similar to that in Ex H over the wearer's left breast. Other examples show the oversized or big pony in a similar position but appearing in one colour. 36 Not all of the items offered for sale or depicted on the website as products of the Ralph Lauren group bear the polo player logo. Some shirts are offered, for example, without it in any form. 37 David Brown emphasised that the decision whether or not to put a polo player logo on a shirt and how that was done was made by the design team at Polo Ralph Lauren. He was a senior executive in the Polo/Ralph Lauren group of companies and is responsible for the portfolio of trade marks owned and registered by the present applicant, Polo/Lauren, in many countries. Mr Brown also said the use and placement of a larger polo player logo on T-shirts was purely a design issue. He disclaimed any role in the design or fashion aspect of the business. He was asked about a different logo shown on the website which depicted a number of polo players apparently in motion. Mr Brown described this as 'a stampede'. He was only involved after the design had been created when he had to attend to trade mark aspects. I formed the view that he was very conscious that he should avoid saying anything which might be regarded as a concession to Polo/Lauren's case. For example, he asserted that when he saw someone wearing a shirt with the polo player logo on it, he thought that it was ugly and that he did not know whether the wearer was making 'a fashion statement'. I do not accept that answer. It was Mr Ziliani's business to be aware of what would appeal to the market to which he was seeking to sell. He had opened the Archer Street store in mid-2006 with a sign stating '... specialising in Ralph Lauren' because the only stock he had available for sale was from the Ralph Lauren group. At the end of the day he did concede that there was something useful commercially in his being able to continue to import shirts bearing the polo player logo, saying: 'Well, that's my business. ' His decision to open a store with stock which initially specialised in the Ralph Lauren group's products, must have been based on his understanding that goods of that design house had an appeal based on their origin and fashionability. Even in his 'Brands 4 Less' store signage, he emphasised that one of the brands that he was selling was Ralph Lauren. 39 The evidence indicates that the polo player logo has considerable significance in identifying clothing as emanating from the Ralph Lauren group. The fact that it is such a prominent feature of the portion of Ralph Lauren's website and marketing material in evidence shows that the polo player logo has an obvious market and fashion significance. While it is plausible that Mr Ziliani did not deliberately seek Ralph Lauren group clothing which had the polo player logo appearing on its exterior surfaces, I am satisfied he knew that much of what he purchased of that design house's goods would have that logo visible when being worn. As he said in his affidavit, when he went on his buying trips, to his observation both exhibitors at the Las Vegas annual trade show and at Los Angeles stores which he visited who sought to sell Ralph Lauren merchandise, had significant quantities of that merchandise which bore the polo player logo. 40 Mr Ziliani was aware that the Ralph Lauren group had subsidiaries or authorised distributors in Australia who supplied their garments for retail sale. He said it was his choice to adopt a business model selling those same garments at a cheaper price than the authorised Australian distributors. About 10 years previously he had had legal advice concerning his proposed importation of garments made by the designer or fashion house, Calvin Klein, and a claim by its Australian distributor in relation to his conduct. Since then lawyers had given guidelines to him from time to time as to what he could import. He said that he had received advice from his present counsel, Mr Cobden, about 10 years ago in relation to the Calvin Klein case and that following his acting on that advice he had not had any other issues concerning copyright questions raised about the conduct of his business model until the present dispute. Thus, it is the embroidered representation of the polo player logo (as opposed to a printed form of the logo) which is the subject of the present proceedings. Ziliani's first defence is that the embroidered form of the logo as illustrated in Exhibits A to P is a 'label' and is thus a non-infringing accessory to the article on to which it is embroidered. If this argument is correct, then s 44C of the Act provides a defence to Polo/Lauren's claim. The word 'label' in par (a) of the definition of 'accessory' in s 10 of the Act is not itself defined. Thus the ordinary English meaning of 'label' is likely to have been the meaning intended by the Parliament. The polo player logo when embroidered on the surface of a garment can be described as being displayed on or incorporated into its surface. The garment is the article referred to in par (a) of the definition of 'accessory'. The question which must be decided is whether the polo player logo when so embroidered is a 'label' within the meaning of par (a) of the definition of 'accessory' in s 10(1) of the Act. 45 Mr Brown gave evidence that the wholesale business of Polo/Ralph Lauren was divided into two divisions, men's wear and women's wear. He said that the polo player logo was the distinctive feature of all products on which it appeared and that it was one of the signature designs used in the Polo/Ralph Lauren family of brands. Since 1980 Mr Brown had acted for Polo/Ralph Lauren in private practice as a trade mark lawyer prior to his becoming an executive in 2003. --- "Label"? No. --- I may have heard that. Nor do I accept the qualification he sought to place upon his answer to the second question quoted above. In my opinion, Mr Brown's qualification that he 'may have heard' the use of the expression that the name of a particular design house was a 'label' was not candid. I am satisfied that he was fully aware of this common usage of the word 'label' in relation to design houses. His qualified concession of having heard that description in respect of the well-known design or fashion house, Gucci, revealed as much. 47 Mr Brown agreed that if a shirt had the polo player logo on it, the presence of the logo conveyed the information to the person looking at it that it was a Ralph Lauren polo shirt. I accept that evidence. 48 Mr Ziliani said that in his experience in the clothing trade, clothing marketed under a particular name or trade mark, such as Gucci, Calvin Klein, Versace, Polo, Peter Morrissey and the like, was generally referred to as being clothing sold under or from a particular 'label'. Mr Ziliani said that by referring to 'well-known clothing labels' he meant the brand of a particular line of clothes. Of course, he appreciated that an item of clothing also could have a physical label which contained a brand name of the maker. He said that he had heard others in the trade and consumers on countless occasions over 15 years use such expressions as 'well-known clothing labels' in relation to clothing emanating from a particular design or fashion house. I accept that evidence as representing the true position. Also, the company trading under this name. 51 I am satisfied that a natural and ordinary English meaning of the word 'label' includes a brand name, trade mark and the name by which a design or fashion house, and its product, such as 'Polo' and 'Ralph Lauren' and 'Polo Ralph Lauren', is generally known. 52 The 1998 amendment of the Act to provide an exception in s 44C so that a label in which copyright subsisted would not be able to control the use of the goods to which the label was attached was prompted by the decision of Young J in the Supreme Court of New South Wales in R & A Bailey & Co Ltd v Boccaccio Pty Ltd (1986) 4 NSWLR 701; 77 ALR 177. There, a manufacturer produced a liqueur known as 'Baileys Original Irish Cream' in the Republic of Ireland and sold it to various distributors around the world. The Australian distributor did not sell the liqueur to the defendant, which had imported its supplies of the liqueur from Baileys' Dutch distributor. The manufacturer and Australian distributor sought to restrain the importer from further importations and sales in Australia. Young J found that the label was exempt from registration under the then provisions of the Designs Act 1906 (Cth) ( Bailey 4 NSWLR at 711C). He also held that there was no infringement of Baileys' trade mark by the importation. There was no dispute that the sticker forming the label on the bottles of the liqueur imported via the Dutch distributor contained an artistic work, being a painting depicting a country scene, the copyright of which was vested in Baileys or its Australian distributor. There was no express licence by the copyright holder for the use by the importer of the artistic work depicted on the labels appearing on the bottles imported from Holland. Young J found that the importation into, and sale of the Dutch bottles in, Australia was a breach of the copyright in the labels. Thus, only because the plaintiffs controlled the copyright in the painting on the label, they could restrain the importation and sale of the liqueur in the bottles on which the label appeared. 53 Young J's decision led to recommendations for the reform of the law by the Copyright Law Review Committee. The Committee is strongly of opinion that distributors of goods should not be able to control the market for their products by resorting to the subterfuge of devising a label or a package in which copyright will subsist . The purpose of copyright is to protect articles which are truly copyright articles such as books, sound recordings or films. This purpose is achieved by conferring on authors of works and makers of subject matter a bundle of exclusive rights entitling them to restrain conduct antipathetical to their incorporeal property and to sue for damages where such conduct has already been committed. If the simple expedient of affixing or attaching a label in which copyright subsists to any goods at all entitles the owner of the goods to exclude others from marketing similar goods, the sooner the practice is stopped the better it will be. However imaginatively labelled or packaged a bottle of liquor may be, the product is liquor . The same may be said of cigarettes, perfume and cosmetics. In the present case, the product or article is the garment. In this regard, Polo/Lauren could not seek to prevent the garment being imported into Australia under the Copyright Act if the polo player logo were not embroidered onto its external surface. 55 In 1997 the Copyright Amendment Bill 1997 (Cth) was introduced to amend the Act. It provided in the proposed s 44C for a new exception of a non-infringing accessory. The Attorney-General circulated an explanatory memorandum for these amendments. It recorded in its introduction that the Bill was proposed to amend the law to prevent the owner of copyright in packaging and labelling of goods, not themselves protected by copyright, from using that copyright to stop anyone from importing the goods (see p 3 of the explanatory memorandum for the Copyright Amendment Bill 1997 , introduced into the House of Representatives on 18 June 1997). 56 The explanatory memorandum, when dealing with the amendments relating to labelling and packaging of imported goods, referred to the 1988 report of the Copyright Law Review Committee. Removal of the ability to use copyright in this way would eliminate one of the means by which exclusive market access is able to be provided to certain distributors of such goods and would implement a recommendation of the Copyright Law Review Committee. The amendments will not, however, affect the operation of the law governing trade marks, insofar as the packaging or labelling includes a trade mark. Thus s 44C(1) of the Act removes from the scope of the exclusive right protected by s 37(1), copyright in a work which falls within the meaning of a non-infringing accessory in s 10(1). And s 44C(2) modifies the operation of the exclusive right in s 38(1) in a similar way. The two exceptions in s 44C require relevantly that first, the artistic work (here, the polo player logo) must have been used in the country of manufacture with the licence of the person entitled there to the copyright by embroidering or weaving it onto an article (here, a garment) and, secondly, it be an accessory (as defined: here, a label) to the article which is imported into Australia. 58 The definition of an 'accessory' in s 10(1) recognises a distinction between the article as a functional item of commerce, and a subsidiary constituent part of the article such as a label embroidered on to it. The embroidered component is functionally accessorial to the article's use. The function which an accessory, as described in pars (a)---(d) of the definition of 'accessory' in s 10(1), performs is incidental to the use of the article as an item of commerce. The article can be used for its intended purpose regardless of whether the s 10 'accessory' is present on it or as part of it. The Parliament intended that a non-infringing accessory, as defined in s 10(1), could be embroidered into an article even though, had the non-infringing accessory been sold by itself without the article, the owner of copyright in it would have been entitled to protection in Australia under the Copyright Act . 59 The word 'label' as used in par (a) of the definition of 'accessory' in s 10(1) should be given a meaning distinct from that provided by other paragraphs of the definition, such as the 'written instruction, warranty or other information provided with the article' referred to in par (d): ASIC v DB Management Pty Ltd [2000] HCA 7 ; (2000) 199 CLR 321 at 338 [34] - [35] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. 'Other information' referred to in par (d) would include the descriptions on the navy-blue and silver embroidered internal labels on the articles in Exhibits A to P (including the scarf, where those labels appear on its exterior surface). Likewise par (c) of that definition would catch the use of the copyright in the painting the subject of the decision in Bailey 4 NSWLR 701. 60 I am of opinion that the polo player logo as embroidered on each of the garments in each of Exhibits A to P inclusive has the function and practical effect of labelling the garments as the product of manufacture by an entity within the Ralph Lauren group. If an ordinary consumer of fashion or design house clothes saw the embroidered polo player logo on any of those clothes, he or she would recognise them, because of the logo, as Ralph Lauren label clothing. That group's own publications, such as the catalogue and websites to which I have referred, identify the polo player logo as a 'signature' (see the extract from the catalogues) or as ' our embroidered pony' (see the website; emphasis added). 61 Had someone other than a member of the Ralph Lauren group used the polo player logo in the same way on clothing as it appears on each of Exhibits A to P, they would have passed off their product as one produced by the Ralph Lauren group. Here, the articles are genuine Ralph Lauren group products. For present purposes, Polo/Lauren's objection to Ziliani importing the goods and offering them for sale here is that they are genuine goods of the Ralph Lauren group but were purchased somewhere other than in Australia. 62 I am of opinion that the 1998 amendments to the Copyright Act were designed to prevent this inappropriate use of copyright. The Parliament had been informed, when making those amendments, that other industries including the footwear and sunglasses industries had developed similar practices to those in Bailey 4 NSWLR 701. The polo player logo, used in the way it is in the 15 exhibits, is affixed to or displayed on or incorporated into the surface of the accompanying article, within the meaning of par (a) of the definition of 'accessory' in s 10(1) of the Act. The polo player logo conveys to anyone who looks at the garment a message of its provenance: ie, it is a product of the Ralph Lauren design or fashion house or 'label'. The definitions of 'accessory' in s 10(1) recognise that such a use can take a variety of forms but is not confined simply to external packaging or internal marking. The polo player logo embroidered on an article of clothing is the 'label' of the design or fashion house, Ralph Lauren, on it. The embroidered polo player logo conveys at once that the article is authentic and is the 'label' of a Ralph Lauren garment. In this practical manner it 'labels' the garment as a product of that design or fashion house. 63 The embroidered polo player logo is not primarily a decorative feature, although it can be attractive to the eye in some of its manifestations. The polo player logo will usually remain covered by the wearer's outer clothing when it appears on the hem of an item of underwear, such as in Ex O. This may not always be the case, but this positioning of the polo player logo suggests that, at least on such a garment, its function is primarily to signify the manufacturer's identity, ie to act as a label. 64 The embroidered polo player logo on an article of clothing acts as a symbol to convey that the clothing was made by the Ralph Lauren design or fashion house. It is a 'signature' or label conveying that information of the garment's provenance. The purpose of s 44C was to prevent such a symbol being used to deny the article its ordinary use as clothing simply because the polo player logo is copyright. The owner of the trade mark and the person entitled to the goodwill of, or associated with, the polo player logo is adequately protected by the rights given under both under the Trade Marks Act and by the tort of passing off from wrongful exploitation by another person of that trade mark or symbol associating the goods with the provenance of the fashion or design house of Ralph Lauren. 65 For these reasons I am of opinion that Polo/Lauren's claim fails because the defence under s 44C has been established. Therefore, Polo/Lauren argued, because ss 74 ---77A are contained in Div 8 of Pt 3 of the Act, the express words introducing ss 37(1) and 38(1) negate the availability of any defence afforded by Div 8 to a claim for infringement of rights under s 37 or 38. 68 In my opinion Polo/Lauren's argument is misconceived. The liability created by ss 37(1) and 38(1) is imposed only on a person who imports an article with knowledge, actual or imputed, that a breach of copyright would have occurred if the article had been made in Australia by that person. The exclusion of such a breach of copyright created by s 77(2) has the effect that if the activity of embroidering the polo player logo onto a garment had taken place in Australia, that would not constitute an infringement of copyright if the artistic work, being that logo, were a corresponding design. Thus, a person has a right to make a reproduction of the work in Australia provided that the conditions set out in s 77(2) are met. It follows that the owner of the copyright in Australia would not be able to establish the criterion of liability for infringement in each of ss 37(1) and 38(1). That criterion is that the importer knew, or ought reasonably to have known, that if the article had been made in Australia its making would constitute a breach of copyright. But because s 77(2) provides that the reproduction embodying (or weaving) the corresponding design in or into the article is not an infringement of the copyright in the artistic work, the criterion of knowledge in ss 37(1) and 38(1) cannot be established. 69 Polo/Lauren also argued that what it called a 'notional reproduction' under s 77(2) could not excuse an infringement of ss 37(1) and 38(1). Polo/Lauren said that the purpose of ss 37 and 38 was to deal with a case where no positive licence had been granted to import and deal with copyright works in Australia. It argued that when ss 37 and 38 applied, the act of reproduction necessarily had already taken place abroad, whereas, Polo/Lauren contended, s 77 dealt with actual reproduction in Australia of the corresponding design. 70 That argument is misconceived. Copyright in relation to an artistic work is the exclusive right created by s 31(1)(b)(i) '... to reproduce the work in a material form'. That exclusive right is infringed under s 37(1) if a person imports such a reproduction without the licence of the owner of the copyright and the importer knows, or ought to know, that if it had made the article in Australia that act would have constituted an infringement of copyright. The infringement of copyright created by s 37(1) is constituted not simply by the objective act of importation without the licence of the owner of the copyright in Australia. It is necessary that the importer has actual or imputed knowledge that if the importer had made the article, and so reproduced the artistic work in Australia, that act of manufacture or reproduction would have constituted an infringement of the copyright. Similarly s 38(1) creates a liability for infringement of copyright by selling or offering for sale an imported article where the vendor knows, or ought to have known, that the imported article, if made by the importer (here the same person as the vendor, namely Ziliani), would have constituted an infringement. The Parliament expressly provided that if an article or product reproduced and embodied a corresponding design satisfying the conditions in s 77(2), there is no infringement. So an article which embroidered a corresponding design within the meaning of s 77(2), if made in Australia, could never constitute an infringement of ss 37(1) or 38(1) simply because the corresponding design was otherwise copyright. I reject this argument of Polo/Lauren. 71 In Burge v Swarbrick [2007] HCA 17 ; (2007) 234 ALR 204 Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ examined in detail the legislative history of the design/copyright overlap provisions of the Act and cognate legislation as they existed immediately prior to the enactment of the current version of Div 8. In 2003 the Designs Act 2003 (Cth) was passed and the former Div 8 of Pt 3 of the Copyright Act was replaced by the current provisions. The current expression of the Parliament's intention is found in the present provisions of the Copyright Act . The definition of 'corresponding design' in s 74(1) of the current Act is substantially different to that examined in Burge [2007] HCA 17 ; 234 ALR 204. 72 The amendments came about following concerns raised in the Australian Law Reform Commission's Report No. 74, Designs : see the revised explanatory memorandum accompanying the Designs ( Consequential Amendments) Bill 2003 circulated by the authority of the Parliamentary Secretary to the Minister for Industry, Tourism and Resources in the Senate. However, artistic works exploited as two-dimensional designs continue to receive copyright protection (and may have dual protection if registered as a design). The ALRC supported the policy underlying sections 74 to 77 and the level of protection but recommended amendments to give more clarity and legal certainty. Those were not registrable as designs because they constituted a method or principle of construction, but the drawings for those pump parts were entitled to copyright protection. Another purpose of the amendments was to focus on the three-dimensional aspects of a design (see par 11 of the revised explanatory memorandum). The revised explanatory memorandum explained the reason for adding a new definition of 'embodied in' in s 74(2) was to address the previous exclusion of a design consisting solely of features of two-dimensional pattern or ornamentation applicable to the surface of an article (see par 13). It went on to say that the amendments to s 74 were intended to clarify that visual features could be embodied in a product by being woven into, impressed on or worked into the product. ... For example, artistic works will not have copyright protection (when used as a design) if a corresponding design is not registered but is industrially applied --- unless they are works of artistic craftsmanship, buildings or models of buildings. They argued that the polo player logo depicted the shape or configuration of a polo player on a horse and that once it had been embroidered into the fabric creating the garment, there was a reproduction of the artistic work, the polo player logo, which did not constitute any infringement of copyright in that work, by reason of s 77(2). 75 Polo/Lauren argued that the visual features of the polo player logo cannot be described as features of 'shape or configuration' within the meaning of s 74. It argued that the polo player logo is basically two-dimensional and has an aesthetic, and not a functional, or utilitarian, purpose. Polo/Lauren contended that the polo player logo should properly be regarded as possessing features of pattern or ornamentation, referring to what Lehane J had said in Wrangler Apparel Corp v Classic Boots Australia Pty Ltd (1997) 38 IPR 19 at 25. 76 However, there his Honour made an obiter observation that 'W' shaped stitching on jeans was capable of being (but did not have to be) regarded as a feature of pattern or ornamentation, within the meaning of the definition in s 4 of the Designs Act 1906 (Cth) . Equally, here, there is no dispute about the capacity of the polo player logo to fall within one or other of the characterisations 'shape or configuration' or 'feature of pattern or ornamentation'. The real issue is which is the proper characterisation. 77 Both parties referred to Grace v Beaulieu of Australia Ltd (2004) 60 IPR 540 at 544 [20] where Finn J refused interlocutory relief under the former version of Div 8 of Pt 3 of the Act. He observed that a claim that copyright existed because a design describing surface contours of a carpet was two-dimensional was 'at best ... a weak one'. 78 In these proceedings Polo/Lauren seeks protection of the polo player logo in its embroidered form. The Ralph Lauren group's catalogue referred to there being at least 784 stitches for each such logo. Exhibits A to P demonstrate that the stitching used to embody the embroidered polo player logo into each garment creates an area of relief between the ordinary surface of the garment and the subtle, but nonetheless noticeable, raising of the surface of the garment in the places where the stitching, or embroidery, has been applied. 79 Polo/Lauren contended that the embroidery should be characterised on the basis that the polo player logo was a mere surface design. It said that the embroidery did not create or confer visual features of shape or configuration on the polo player logo. The composite expression "pattern or ornamentation" is generally limited to two-dimensional features in contrast to "shape or configuration" which are generally taken to refer to three-dimensional elements of appearance. It is submitted that "shape or configuration" will continue to have that meaning. It contended that the embroidery was not an essential feature or characteristic of the appearance of the garments amounting to a visual feature of shape or configuration in the sense explained in cases such as Cow ( PB) & Co Ltd v Cannon Rubber Manufactures Ltd [1959] RPC 240 at 244 per Lloyd-Jacob J. There, Lloyd-Jacob J said that a design of a hot-water bottle which had a ribbed appearance had to be '... considered on the footing that the particular ribbed appearance which it provides in articles to which it is applied is a characteristic feature of it'. In contrast, Polo/Lauren suggested that the subtlety of the embroidery as used on the various garments retained the essential two-dimensional character of the visual appearance of the polo player logo, so that it was to be regarded as a part of a pattern or ornamentation of the garment, and thus outside the definition of 'corresponding design'. On each of the 15 exhibits (A to P) it is immediately apparent that the polo player logo is embroidered, not printed, and that the fabric surrounding the embroidery is subtly, but noticeably, differently woven to the distinct area embroidered. 82 One picture in the polo knit shirt catalogue showed six differently coloured polo knit shirts. They were in a pile folded one top of the other. Each polo knit shirt had an embroidered, but differently coloured, polo player logo visible on it. The embroidery is noticeably raised above the surface of the rest of each of those garments as depicted in the picture. 84 I am of opinion that the embroidered polo player logo falls within the definition of 'corresponding design' in s 74 of the Act because it has visual features of shape or configuration being the distinctive alteration of the fabric created by the embroidery of the logo using at least 784 stitches. The embroidered polo player logo is not properly to be regarded as a mere matter of pattern or ornamentation of the garments on or into which it has been woven. There was no issue that if the embroidered polo player logo were found to be a corresponding design within the meaning of s 74, the other conditions necessary for Ziliani to satisfy s 77(2) have been met. 85 It follows that I am satisfied that the importation, sale, offering for sale, and other activities of Ziliani complained of in respect of the embroidered polo player logo were made in respect of reproductions which were not infringements of copyright by force of s 77(2) of the Act.

copyright application for injunction to restrain importation and sale of clothing bearing embroidered polo player logo without licence of owner of copyright logo lawfully embroidered in country of manufacture with licence of owner of copyright whether importer entitled to engage in "parallel importing" of those goods into australia without licence of owner of copyright in australia intellectual property

For a variety of reasons, the first respondent (CASA) has taken a significant number of disciplinary measures against the applicants. The applicants in turn have challenged those decisions on several occasions - and with some success. As a result, the applicants wish to pursue somewhat novel claims in damages against CASA and certain of its officers seemingly for loss sustained in the applicants' business activities, that is, economic loss. The applicants move to amend their statement of claim. At present, the applicants rely upon an amended statement of claim against CASA and the second respondent (Mr Farquharson). They wish to join four individuals as respondents. Mr Farquharson and the other four individuals identified in the minute of the proposed further amended statement of claim were (at relevant times) officers of CASA. The applicants seek to pursue against the respondents and/or the proposed respondents claims in damages in a variety of proposed causes of action. The applicants contend that CASA has breached the Civil Aviation Act 1988 (Cth) (CAA) and the Civil Aviation Regulations 1988 (CAR) in several ways. The consequence of those breaches has been, it is argued, that the respondents are liable in damages to the applicants for breach of statutory duty, breach of a duty of care and in the case of the individual or proposed individual respondents, for misfeasance in office. Leave to amend is opposed. Further, CASA and Mr Farquharson move for orders pursuant to O 20 of the Federal Court Rules (FCR) and s 31A of the Federal Court of Australia 1976 (Cth) (FCA) for judgment in relation to all or any of the applicants' claims, alternatively, the striking out of the existing amended statement of claim. On numerous bases, the respondents contend that the existing and proposed causes of action which the applicants seek to pursue are so untenable that the proceeding should be dismissed forthwith. Broadly speaking, the applicants plead that in exercising its powers and functions CASA has a common law duty of care which requires that it comply with the legislative and regulatory scheme so as to ensure its actions do not cause economic harm to entities whose conduct it regulates (including the applicants). The applicants argue that CASA has breached that duty in consequence of which the applicants have sustained actionable loss and damage. Secondly, the applicants argue that CASA owed them a statutory duty to exercise its powers only in accordance with the provisions of the civil aviation legislation. It is argued that CASA breached that duty in consequence of which the applicants have sustained recoverable damage. Thirdly, it is asserted in a manner which will require some examination that there has been misfeasance in office by the present and proposed individual respondents against whom the applicants seek to advance such a claim. CASA contends that each one of the claims sought to be made by the applicants is dependent upon a determination that particular administrative decisions made under the civil aviation legislation (such as granting or refusing to grant or cancelling or suspending a licence, authorisation or certificate) was invalid and/or ultra vires. The applicants accept that this is the nature of the claim which is pursued. However they contend that even if the breaches were not established, but a failure to act in good faith was established, that they would be entitled to relief. In either event, CASA rejects any assertion that there was any statutory breach and, in particular, denies any suggestion of having misconstrued or misapplied relevant provisions. As a general observation in relation to this litigation, despite a significant number of attempts to formulate a statement of claim and much activity opposing any claim, both the claim and the opposition to it are not sufficiently crystallised to enable any sound conclusions to be formed as to the survival of any part of it. The claim as presently proposed can not survive but equally it can not be said, at present, that the entirety of the claim should be dismissed. Accordingly a limited opportunity to re-plead will be allowed but unless and until adequate and proper material facts can be pleaded, substantial parts of the claim will not be permitted. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [45] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124] . See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5] ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 70 IPR 146 at [42] - [48] ; Hicks v Ruddock [2007] FCA 299 ; (2007) 156 FCR 574 at [13] ; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30] ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21] ; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. The second applicant (Mr Repacholi) is a Director of the first applicant (Repacholi Aviation). Mr Repacholi held a commercial and private pilot licence and prior to March 2002 was the Chief Pilot of Repacholi Aviation. Repacholi Aviation prior to 2002 held an Air Operator's Certificate (AOC) which authorised it to conduct charter operations throughout Australia. On 5 March 2002, CASA served a notice in writing pursuant to CAR 268(1) suspending the pilot's licences held by Mr Repacholi, pending investigation. On the following day, Mr Repacholi applied to the Administrative Appeals Tribunal (the AAT) for a stay of CASA's decision. On 14 and 15 March 2002, that application was heard and refused ( Repacholi v Civil Aviation Safety Authority [2002] AATA 196). Shortly after, in March 2002, Repacholi Aviation submitted to CASA an 'Application for approval of Appointment' of Mr Frederick Darrel Hampton as Chief Pilot of Repacholi Aviation. Mr Hampton, however, was assessed by CASA as being 'unsatisfactory for charter ops'. Nevertheless, he was assessed as being suitable as a Chief Pilot in relation to agricultural operations. An AOC was issued to Repacholi Aviation authorising aerial work operations only with the approval of Mr Hampton as Chief Pilot of Repacholi Aviation. This occurred on 3 April 2002. In the meantime, on 28 March 2002, CASA issued a notice to Mr Repacholi allowing him 28 days within which 'to show cause' why his licences should not be varied, suspended or cancelled on the basis of the facts and circumstances set out in the notice. It is unnecessary for present purposes to recite the content of that notice. By it, CASA's General Manager, General Aviation Operations (Mr Ogilvie) (a proposed third respondent) also notified Mr Repacholi of the operation of CAR 268(3). He advised that the effect of that provision was that the licences held by Mr Repacholi remain suspended during the 'show cause' period. There is a debate about whether or not at this time objection was taken or voiced by Mr Repacholi to the terms of the 'show cause' notice. What is common ground, however, is that on 6 May 2002, Mr Repacholi through his solicitor responded to the notice and requested CASA to 'lift the suspension'. By a further notice of 19 June 2002, however, CASA notified Mr Repacholi that grounds existed which justified cancellation of his pilot licences in accordance with CAR 269. In doing so, CASA asserted that it had carefully considered all the evidence in the matter including Mr Repacholi's written response to the show cause notice. There is a dispute as to whether or not there was such careful consideration. Mr Repacholi then sought review of that decision to cancel his licences. Over a five day period in September and November 2002 the AAT heard evidence and argument on the review and delivered a decision on 18 June 2003. The AAT concluded that notwithstanding contravention of reg 157 and reg 166 of the CAR in January 2002, Mr Repacholi's pilot licences should not be cancelled pursuant to CAR 269. There were then communications between the applicants and CASA. On 14 November 2003, Repacholi Aviation sought CASA's approval of the appointment of Mr Repacholi as its Chief Pilot. The parties agreed that an assessment of Mr Repacholi should be undertaken by the Vic/Tas office of CASA at Moorabbin in Victoria. On 4 February 2004, CASA wrote to Repacholi Aviation advising of its refusal to approve Mr Repacholi as the appointed Chief Pilot of Repacholi Aviation. Repacholi Aviation then pursued a further application for review of CASA's latest decision. This application was heard before the AAT over four days in December 2005. The AAT delivered its decision on 30 June 2006 setting aside CASA's decision and remitting the matter to CASA for reconsideration in accordance with s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). That application before the AAT was filed on 10 February 2004. Well before it was heard, on 23 September 2004, CASA by its Principal Medical Officer gave a direction to Mr Repacholi under reg 67.230 of the Civil Aviation Safety Regulations 1998 (CASR) to authorise disclosure of medical information to CASA. Mr Repacholi refused to comply with the direction. Correspondence ensued. CASA suspended Mr Repacholi's medical certificates pursuant to the power contained in CASR 67.240(1) by a notice dated 27 October 2004. Two days later, by letter dated 29 October 2004, Mr Repacholi through his solicitors informed CASA that an application for an injunction was being pursued in the Victoria Registry of this Court. Negotiations ensued between the solicitors for the respective parties on that day. CASA then temporarily withdrew the suspension of Mr Repacholi's medical certificates until 4 November 2004 so as to enable him to complete some urgent crop spaying in rural Western Australia. In the interim, the motion for an injunction came before North J. His Honour granted an interim restraining order adjourning the application until 5 November 2004 'for the purpose of the respondent providing ... evidence as to the serious affect (sic-effect) on aviation safety resulting from the psychiatric treatment' of Mr Repacholi. On the following day (4 November 2004) CASA revoked the suspension of Mr Repacholi's medical certificates. The Court, by consent, made orders setting aside the interim injunction and dismissing the proceedings. Subsequently, there were several requests made by or on behalf of Mr Repacholi for Repacholi Aviation's AOC to be reinstated 'back to the original status'. Precisely what happened in relation to each such request is not presently clear but ultimately, in any event, there was no complete reinstatement. The only application expressly or formally sought on behalf of Repacholi Aviation was to add a Flying School authorisation (for agricultural operations only) to the AOC of Repacholi Aviation. By s 3A of the CAA the main object of the Act is described as being that of establishing a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents. CASA has the function of conducting the safety regulation of the CAA and the means by which it does so include the issuing of certificates, licences, registrations and permits (s 9(1)). It is also empowered to issue various authorisations under the CAA. Those include various kinds of pilot licences issued under Pt 5 of the CAR. It also issues various kinds of AOCs. These are provided for under Pt III Div 2 of the CAA. There is little doubt that the safety of air navigation is the most important consideration under the CAA (see s 9A(1)). This is also reflected under subsidiary provisions. The applicants were involved in flying for commercial purposes. By s 27(1) of the CAA, CASA is entitled to issue AOCs for the purpose of its functions under the Act. An AOC is required to fly or operate for prescribed commercial purposes (s 27(2) and (9)). It is for CASA to determine the term of an AOC (s 27(7)). However, a failure to include such a summary does not affect the validity of the notice. The AOC holder must comply with the provisions of Appendix 1 to CAO 82.0, the effect of which is that before a person is appointed as a Chief Pilot the appointment must be approved in writing by CASA 'after application in writing by the operator'. As indicated by these provisions, CASA has wide powers including the power to vary the conditions of an AOC at any time (s 28BB(1) and (2)). Further, and pertinently to the facts described below, CASA may by written notice given to the holder of the AOC suspend or cancel the AOC if a condition of that AOC has been breached (s 28BA(3) of the CAA). Included amongst those grounds is the ground that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft (CAR 269(1)(c)). Similarly, if the holder 'is not a fit and proper person' to hold the licence, certificate or authority, the power under CAR 269(1) may be exercised (CAR 269(1)(d)). However (and relevantly to the present situation), before any action is taken by CASA under those provisions, it must issue a notice to the holder of the relevant licence, certificate or authority permitting the person time within which to 'show cause' why regulatory action as foreshadowed should not be taken (CAR 269(3)). One of the provisions falling for consideration in these proceedings is the preceding regulation, CAR 268 which as at 2002 permitted CASA by notice in writing served on the holder of the licence, certificate or authority to suspend that licence, certificate or authority where CASA had reason to believe that facts or circumstances existed which would justify regulatory action and where 'there may be a serious risk to air safety if the licence, certificate or authority were not suspended'. CAR 268 deals with suspension rather than the possibility of cancellation. However, at the same time, it does not contain the requirement in CAR 269(3), to first issue a 'show cause' notice. CAR 268 appears to be directed to the taking of prompt action in appropriate circumstances when it has ' reason to believe ' there may be risk to air navigation safety. CAR 269 appears to apply when it is ' satisfied ' (from whatever source of knowledge) that problems exist. For an appreciation of the arguments in relation to this topic, it is necessary to set out the provisions of CAR 268 and CAR 269 as at March-June 2002. As with other decisions of the AAT, it conducts a full merits review, standing in the shoes of the decision-maker to make 'the correct or preferable' administrative decision on the evidence before the AAT. An additional power conferred on the AAT under s 41 of the AAT Act is to stay the operation of a reviewable CASA decision or otherwise to make a positive order in favour of an applicant before the AAT. By writ of summons dated 17 June 2008, the applicants initiated proceedings in that Court against CASA and its then Area Manager, Western Region, Mr Farquharson. Damages were sought for losses allegedly suffered by reason of acts and omissions of CASA and/or Mr Farquharson in the exercise of powers under the relevant legislation. The causes of action were related to alleged breaches by CASA occurring through the period from 2002-2007. There were exchanges of correspondence between the solicitors for the parties. These exchanges gave rise to various revised versions of the statement of claim. The proposed amended statement of claim which is now before this Court is the culmination of those amendments and appears to be the seventh version of the pleading. The current proposed pleading, however, was preceded by a summary judgment application brought before Master Sanderson in the Supreme Court of Western Australia on 9 March 2009. In those proceedings, the respondents contended that the applicants were in substance seeking judicial declarations as to the validity or otherwise of decisions or instruments made by CASA in circumstances in which s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) may apply to preclude such a review by State Supreme Courts. The submissions for the respondents also pursued the argument which is presently raised that the applicants were seeking common law damages based on impermissible de-facto claims for judicial review of administrative action. The learned Master indicated that he was disposed to transfer the proceeding or the action to this Court pursuant the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA). Accordingly, the applicants formally so applied for such transfer. The respondents inform the Court (and the applicants do not suggest otherwise) that the respondents did not oppose the transfer nor concede that any version of the applicants' variously amended drafts of the statement of claim at that stage raised a federal 'matter' enlivening the jurisdiction of this Court. It is contended now for the respondents (amongst other arguments), that this Court does not have jurisdiction to determine the claims advanced by the applicants. I will deal with that argument in due course. In large measure the material from the respondents is intended to show that CASA and its officers at all times acted reasonably and within the letter and spirit of the laws which the applicants contend were breached. For the applicants the material is designed to convey not only the contrary impression but also that there is a reasonable basis for their claim in light of evidence before the AAT, the conclusions of the AAT and the continual opposition by CASA to Repacholi Aviation's AOC status being restored. These factors, it is said, suffice to form a reasonable basis from which to infer that the alleged breaches and bad faith will be established after discovery. Each party accepts that factual material may be considered on an application of this nature. However, if the legal submissions of the respondents are correct then the content of this material is largely, if not wholly, irrelevant. That is, the respondents' current arguments do not depend on the determination of a factual contest. If the legal submissions are not correct, then in the circumstances of this case, expression of views at this very early stage in relation to what may be inferred from a complex and lengthy history of disputation would not be possible and would, in any event, be unhelpful and inappropriate. Having established the formalities, the applicants first raise a 5 March 2002 notice of CASA issued by it under s 268(1) (the first notice) to suspend Mr Repacholi's pilot licences pending investigation after a takeoff executed by him at Jandakot Airport in Western Australia, on 10 January 2002. The complaint in relation to the notice which was served on Mr Repacholi is a failure on the part of CASA to comply with its statutory obligation under CAR 268(2) to conduct 'an investigation' into the facts and circumstances associated with the takeoff and to complete the investigation promptly. The next matter raised is a second notice on 28 March 2002 (the second notice) pursuant to which CASA purported (pursuant to CAR 268(3)) to further suspend the pilot licences held by Mr Repacholi and to require him to show cause why his pilot licences should not be varied, cancelled or suspended. Again, it is alleged that there was a failure to conduct a proper investigation as required by CAR 268(2) such that the second notice was void and ineffective. In addition to the invalidity, it is asserted that the second notice was contrary to the provisions of the statutory regime governing the operations of CASA and took place in circumstances where the signatory to the notice, Mr Ogilvie acting on instruction from Mr Farquharson, knew or ought to have known that its service was not authorised by law and was beyond each of their respective powers and beyond power of CASA. The next matter raised is a third notice of 19 June 2002 (the third notice) by which CASA purported (pursuant to CAR 269) to cancel the pilot licences including the commercial pilot's licence held by Mr Repacholi. That notice was signed by Mr Frew. The applicants complain that in respect of that notice, there was no power 'or jurisdiction' on the part of CASA to cancel the pilot licences until Mr Repacholi had first been served with and given an opportunity to answer a valid 'show cause' notice (CAR 269(3). The complaint is that at no time was Mr Repacholi served a valid show cause notice such that the cancellation under the third notice was void and ineffective. Certain conduct of officers of CASA is also raised in relation to the third notice. Each of the three notices was allegedly made without conducting an investigation or without proper inquiry or without knowledge of the planning and preparation undertaken by Mr Repacholi for the purpose of conducting a takeoff. It is said that CASA and the relevant officers should have been aware of the fact that 'similar takeoff operations were commonly conducted in the United States of America' and had insufficient information regarding the takeoff operation as a whole. It is said that the notices were, in the case of the second and third notices, made 'without jurisdiction'; made in excess of authority of individual persons; were knowingly made in excess of authority; were made in breach of CASA's duty of good faith; or, alternatively, made negligently. It is next pleaded that on 18 June 2003 in proceeding W2002/217 between Mr Repacholi and CASA, the AAT set aside the decision to cancel Mr Repacholi's pilot licences and in substitution, therefore, decided that the licences not be cancelled and held that the cancellation of his pilot licences could 'only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate'. On the basis of those matters, it is asserted that the cancellation of Mr Repacholi's licences constituted a breach by CASA of its statutory duty to him; and a breach of its duty of good faith to him. It was also allegedly negligent in that CASA ought to have been aware but was not aware of the overseas practice relating to takeoffs of the kind the subject of the suspension and cancellation. Allegedly, the decision to cancel was taken after insufficient research, on insufficient information and without proper inquiry as to 'existing and accepted practice' in relation to such takeoffs. The decision to cancel was also allegedly taken with insufficient information and without proper inquiries as to the details of and preparation for the takeoff by Mr Repacholi and others. The applicants then embrace language similar to that used in the AAT contending that the decision to cancel Mr Repacholi's pilot licences was in the circumstances, grossly excessive and unreasonable. They say, further, it was made without jurisdiction and contrary to provisions of the statutory regime governing the operations of CASA. They say it was in excess of the authority of the individuals who served the notices and made in circumstances where they knew the decision was not authorised by law and was one that they had no power to make; or alternatively, was made by each of them recklessly, not caring whether the decision was authorised by law or was within power. The applicants go on to plead that by reason of the wrongful suspension of Mr Repacholi's pilot licences by the first and second notices, Repacholi Aviation sought approval of CASA for appointment of Mr Fred Hampton as its Chief Pilot. On 3 April 2003, Mr Repacholi (whose appointment as Chief Pilot of Repacholi Aviation had been approved by CASA on 10 February 1994) and who had acted in that capacity since that date 'stepped back' as Chief Pilot on Repacholi Aviation. On the same date, CASA approved Mr Hampton as Chief Pilot of Repacholi Aviation but assessed him as suitable only for 'aerial work - initially Ag Ops' and as not suitable for charter operations. The applicants complain that by reason of the limited form of this approval of Mr Hampton, CASA renewed Repacholi Aviation's AOC in terms excluding charter operations even though, as at the date of his approval, Mr Hampton had the qualifications required for appointment as Chief Pilot of a company carrying out charter operations. It is complained that in those circumstances, CASA was under a statutory duty to Repacholi Aviation to approve the appointment of Mr Hampton as Chief Pilot without in any way amending Repacholi Aviation's AOC. It is then pleaded that on 25 June 2003, following the decision of the AAT to set aside the cancellation of Mr Repacholi's pilot licences, the solicitors for the applicants wrote to CASA requesting reinstatement of Mr Repacholi as Chief Pilot of Repacholi Aviation and the reinstatement of the charter operations on Repacholi Aviation's AOC. On 1 September 2003, Repacholi Aviation made a written application to CASA for approval of the appointment of Mr Repacholi as Chief Pilot of the company. That application was sent by facsimile transmission and by a facsimile of the same date, the Flying Operations Inspector of CASA requested a formal application for approval of Mr Repacholi's appointment be filed so that his suitability could be assessed. Following this, on 14 November 2003, Mr Repacholi and the company made a further and formal application to CASA for approval of the appointment of Mr Repacholi as Chief Pilot of the company. That application was signed by Mr Repacholi and forwarded under cover of a letter from Mr Dennis Repacholi on behalf of Repacholi Aviation. The applicants plead that in those circumstances CASA was under a duty to consider the application for approval of Mr Repacholi as Chief Pilot of the company on its merits and to assess and examine him in accordance with par (b)-(d) of cl 1.3 in Appendix 1 of CAO 82.0. The applicants say that by the fourth notice CASA wrongfully, in breach of its common law duty to Mr Repacholi and the company and in breach of its statutory duty to Mr Repacholi and the company, in breach of its duty of good faith and without assessing and examining Mr Repacholi in accordance with par (b)-(d) of cl 1.3 in Appendix 1 of CAO 82.0, refused to approve the appointment of Mr Repacholi as Chief Pilot of Repacholi Aviation. Complaints are made against the individuals involved on the basis that the request was made without giving any true consideration to the application; without making any proper assessment of Mr Repacholi's qualifications to be appointed as Chief Pilot; made in breach of CASA's duty of good faith and the duty of good faith of Mr Farquharson and one of the other individuals it is proposed to join in the amended pleading which the applicants seek to have leave to file. It is said that the fourth notice was made without assessing and examining Mr Repacholi in accordance with the requirements of cl 1.3 and without jurisdiction in circumstances where the two individuals knew the decision was beyond power; or alternatively, was made recklessly, not caring whether it was a decision within power. There is then pleaded a further proceeding in the AAT on 30 June 2006 (proceeding number W2004/44) in which the AAT delivered its decision and ordered that Mr Repacholi be assessed and examined by an examiner appointed by CASA based in a regional office of CASA other than the Perth Regional Aviation Field Office (formerly known as the West Office Area). As a result of assessments carried out pursuant to the AAT's determination, Mr Repacholi's appointment as Chief Pilot of Repacholi Aviation was approved by CASA on or about 19 December 2006. It is pleaded that in breach of its duty of good faith and in breach of its statutory duty to the company, the appointment of Mr Repacholi as Chief Pilot of the company and despite 'numerous requests' CASA failed or refused to reinstate 'charter operations' on the AOC held by Repacholi Aviation. Conspicuously, this direction was wholly unlimited in point of time. A new individual officer signed this document and it is also sought to join that individual as a respondent. The applicants complain that the direction which purported to be made pursuant to CASR reg 67.230(1)(e) was made in circumstances which did not satisfy the requirements of reg 67.230(1)(a) or (b) and was therefore not authorised by par (e). Further, it related to information the disclosure of which did not satisfy the requirements of that paragraph and was not authorised by or under any other legislative provision. It is said, therefore, that the direction was void and ineffective and made without jurisdiction. The next notice (the fifth notice but the sixth matter of which complaint is made) was issued on 29 October 2004 when CASA issued a notice of suspension of the class 1 and class 2 medical certificates held by Mr Repacholi based on his failure to comply with the direction. That notice, it is said, was signed by the same individual who signed the direction and appears to have been issued on the advice and recommendation of a further individual whom it is not sought to join as an additional respondent. Once again, it is contended that the decision to suspend the medical certificates was made in breach of CASA's statutory duty; was made without 'jurisdiction'; was made without reasonable grounds; was known by the author to be made without 'jurisdiction'; or alternatively, made recklessly, not caring whether it was or was not a decision within the power and was made negligently in that Mr Repacholi had failed to comply with a direction which was invalid and in which CASA and the individual concerned ought to have known was invalid and in circumstances where there were no grounds or reasonable grounds for the suspension of the medical certificates. It is said, therefore, that CASA and all the various individuals involved in serving the various notices acted beyond power in circumstances where they knew that they did not have the power to suspend the pilot licences pursuant to CAR 268(3) on 28 March 2002 in the absence of an investigation; cancel the pilot licences; refuse to approve the appointment of Mr Repacholi as Chief Pilot after 10 February 2004; refuse or fail to consider in early 2007 the application by the company to reinstate 'charter operations' on its AOC; and to issue a notice of suspension of the class 1 and class 2 medical certificates held by Mr Repacholi. It is therefore asserted that the individuals and CASA were in breach of the statutory duty and acted 'without jurisdiction' in circumstances where they knew that the acts were in excess of 'jurisdiction', or alternatively, acted recklessly, not caring whether they had the power to act and exercised such statutory powers they did have for the purpose of and with the intent of injuring Mr Repacholi and/or Repacholi Aviation by the exercise and purported exercise of the statutory powers. Those matters are said to constitute, on behalf of each of the individuals, misfeasance in public office. The applicants say that they have suffered damage by reason of the unlawful actions of the respondents; the negligence of the respondents; the breaches of duty of good faith; the breaches of statutory duty; and the misfeasance in office. I propose now to look at some specific matters raised in the proposed pleading before addressing the broader legal principles which arise. The applicants contend that CAR 268(2) required that CASA upon giving the first notice to Mr Repacholi 'investigate the matter' forthwith. Therefore it is contended that from the date of giving the notice CASA owed Mr Repacholi a statutory duty forthwith to conduct an investigation into the facts and circumstances associated with the takeoff and to complete that investigation promptly. This they say is because the effect of CAR 268(2) would be that the suspension of his licence would cease on completion of the investigation required under that subsection or upon the expiration of 28 days from the date on which the suspension took effect, whichever was the earlier. It is said that in breach of its statutory duty, CASA did not conduct an investigation in relation to the facts and circumstances associated with the takeoff either forthwith or at all and did not complete any investigation of the facts and circumstances associated with the takeoff. Although CASA strongly denies that there was no investigation and seeks to rely upon evidentiary material to make it clear that there was an investigation, it also submits that the applicants have misconstrued the statutory effect of the provisions in CAR. For CASA it is argued that in the circumstances set out in CAR 268(1), CASA may by notice in writing suspend a pilot licence. Where it does so it must forthwith investigate the matter. However, CASA argues that the fact of investigation by reason of CAR 268(2) only provides a reference point for the expiration of the suspension under CAR 268(1) on a basis that is 'without prejudice' to CASA's power under CAR 269. That power, CASA contends, can be exercised independently of any action taken pursuant to CAR 268. CAR 268(3), it is contended, provides a legal consequence or particular effect in relation to the suspension of a licence resulting from the exercise of CAR 268(1), namely, by operation of law not by operation of any further decision of CASA. CASA says the undisputed facts are that CASA made a decision to suspend on 5 March 2002. Repacholi Aviation unsuccessfully sought a stay of that decision in the AAT on 6 March 2002 and a show cause notice was issued on 28 March 2002 providing Mr Repacholi with 28 days within which to show cause; Mr Repacholi responded to that notice on 6 May 2002 and CASA took action on 19 June 2002 to cancel Mr Repacholi's license. In those circumstances, CASA argues the notice of 28 March 2002 cannot be held to have been 'invalid and ineffective' and there can be no jurisdictional error attending its making. CASA contends that even if one assumes a technical failure to follow the procedure under CAR 269(3) before the issue of a show cause notice, that failure could not result in 'invalidity' or unlawfulness of the regulatory action in fact taken: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. However, the applicants contend that this is the wrong construction of the relationship between CAR 268 and CAR 269. Senior counsel for the applicants contends that CASA can take one of two courses if it thinks there are circumstances that would justify suspension. It may suspend the license or certificate for the purpose of an investigation or it can direct under CAR 269 to issue a show cause notice. Senior counsel argues that if one looks at CAR 268(2), the words 'without prejudice to the power of the Authority under reg 269' only qualify the words 'shall cease upon the completion of the investigation or at the expiration of 28 days'. CAR 268 contemplates that the issue of a show cause notice under CAR 269(3) shall occur after the investigation under CAR 268(2) has been completed not prior to the completion. The reason for that, it is submitted for the applicants, is that there would be no point in giving CASA an obligation to investigate while at the same time permitting it to suspend or cancel. CASA chose to proceed under CAR 268 therefore it had an obligation to complete the investigation. Until the investigation was completed, the power to give a show cause notice did not exist. At this preliminary stage I have doubts about the applicants' argument. On the face of the statute it seems to me that CASA can go straight to CAR 269 in an appropriate case. However, I would not be prepared to conclude at this summary stage that this argument as to the interaction of the two regulations is sufficiently lacking in merit so as to warrant a dismissal of so much of the proceeding as depends upon it. As observed in Dandaven , s 31A FCA ought not be used to shut out proceedings where there may be room for doubt on a proposition of law. By declining to strike out this aspect of the pleading, alternatively permitting the argument to be ventilated by allowing this portion of the amended pleading, I should not be taken to be endorsing the argument. I express no view at this stage as to its strengths other than to say I could not conclude that it was unarguable. Whether it grounds a cause of action, however, is a separate question which I address below. It would appear that the main purpose of referring to the AAT proceedings by the applicants is to show that on a merits review of the decisions taken by CASA, the AAT disagreed with CASA's decision, in one instance, it seems, particularly strongly. The fact that there is in existence a provision for review of administrative decisions taken by CASA, illustrates the availability of an adequate (and arguably sufficient) remedy for an aggrieved person affected by an adverse regulatory decision made by CASA. For the respondents it is argued that because s 43(6) of the AAT Act has the effect that the substituted decision made by the AAT replaces the decision of CASA, there is no decision of CASA in existence capable of causing any relevant loss or damage to the applicants. I do not find this argument compelling but I will not resolve it at this stage. But, in any event, the observations, comments and findings of the AAT, as distinct from its decision, are not relevant to and cannot be afforded any weight in determining whether there is sufficient evidence of any invalid act for the purpose of mounting a claim based on allegations of misfeasance, breach of statutory duty or even negligence. The applicants have conceded in argument that the AAT did not consider the lawfulness of the decisions made by CASA but was rather considering the merits of the decisions. It is difficult to see how any observation made by the AAT is capable of being relied upon for the purposes of some separate pleaded cause of action for unlawful conduct of CASA. Given the considerable body of evidence the parties have sought to adduce, I can take this material to be no more than part of the history that the applicants wish to set out. Observations made by the AAT cannot have any binding effect on this Court or constitute a necessary fact to be proven in a proposed claim in damages. I would not decline to admit the affidavit evidence or the pleading on this topic provided it is for the limited basis of outlining the history. In relation to this aspect of the matter, CASA complains that the pleading is embarrassing because the provisions alleged were not the provisions in force as at 4 February 2004. Rather, cl 5.1 of Appendix 1 to CAO 82.0 applied. Secondly, no material facts are pleaded to support the conclusions asserted in the pleading. Rather, such evidence as there is, discloses that the assessment of the suitability of Mr Repacholi to be approved as Chief Pilot of Repacholi Aviation was made by CASA under the applicable CAOs as in force as at February 2004. CASA argues that the criteria identified in cl 5.1 are conjunctive, that is, a nominee chief pilot must satisfy all of the four identified criteria. On the face of cl 5.3, it was open to CASA to terminate the assessment process if the nominee failed to meet any one of the criteria listed in cl 5.3 without proceeding to consider other criteria. On the evidence, CASA argues that it applied the prescribed criteria to form the view that Mr Repacholi did not have a satisfactory record in the conduct or management of flying operations and was considered not suitable to carry out the responsibilities of a chief pilot. Once again, I do not consider that it is possible to determine the correctness or otherwise of CASA's detailed submissions in the absence of a determined factual framework established from appropriately tested evidence. Whether the applicants' complaints, even if correct, would ground a cause of action, is another question. CASA complains that as with certain other paragraphs, it simply pleads a conclusion rather than any material facts which might sustain some duty to 'reinstate' charter operations. In any event, CASA relies upon an application for variation of Repacholi Aviation's AOC made on or about 12 July 2007 in which Mr Repacholi expressly stated that he was not proposing to add charter operations to the company's AOC. In relation to the allegation that CASA 'specifically intended' to harm Mr Repacholi, it is submitted by CASA that no material facts have been pleaded from which such an intention can be inferred and the pleading should be struck out as being vexatious and defective. Nor is it evident that it gives rise to any civil remedy for a breach. In relation to this topic generally, the applicants say that they anticipate, with the benefit of discovery, they will be in a better position to prove the bad faith which they now assert. I cannot accept that this approach is permissible. There are no material facts identified to support any of the bad faith pleas. Those pleas will not be permitted. No material facts at all are pleaded to supplement these bald assertions. That direction was contained in a letter dated 23 September 2004 from CASA by which it directed him to authorise the disclosure to CASA of certain information. It is conspicuous that the direction was totally unlimited in point of time. The applicants claim that the direction which is purportedly made pursuant to CASR 67.230 did not satisfy the requirements in CASR 67.230(1)(a) or (b) and was therefore not authorised by subpar (e) and related to information, disclosure of which did not satisfy the requirements of CASR 67.230(1)(e) or was otherwise unauthorised. The applicants contend that the direction was void and ineffective. As a consequence the fifth notice was in breach of CASA's statutory duty, made without jurisdiction, made without reasonable grounds and was made knowingly without jurisdiction or, alternatively, recklessly. A claim in negligence is also made. It is contended that all of the officers of CASA to whom reference is made knew that they never had the power in the relevant circumstances to suspend the pilot licences of Mr Repacholi, to cancel the licences, to refuse to approve the appointment of him as Chief Pilot after 10 February 2004, to refuse or fail to consider in early 2007 Repacholi Aviation's application to reinstate charter operations and to issue a notice of suspension of the medical certificates. There is no foundation for the bad faith plea. In relation to the allegation that the direction given to Mr Repacholi was not authorised by legislation and was knowingly made without 'jurisdiction', CASA complains that no material facts have been pleaded by reference to which it may be said that a particular common law duty to the applicants or either of them was owed by the respondents or any of the proposed respondents. To that extent, CASA complains that the pleadings are embarrassing in that the scope and content of any particular duty is not identified or particularised. It is not known whether an allegation of breach of duty is made against CASA or Mr Farquharson or both. The relevant correspondence between CASA and Mr Repacholi on the issue indicates that Mr Repacholi considered the notices to be unreasonable and unjustified because they were not required 'in the interests of air safety'. That correspondence contains CASA's explanation as to why it considered it to be in the interests of air safety to issue the notices, namely, because CASA had received information that Mr Repacholi was receiving psychiatric treatment. CASA also submits that the evidence that is presently before the Court explains why CASA considered the basis for the notice to have supported the exercise of the power in CASR 67.230 and CASR 67.260 whereas the proposed amended statement of claim pleads no material facts to support the conclusion which it expresses. CASA is accordingly unable to determine whether it has any case to meet and any pleading against any proposed individual in relation to the allegations raised by the applicants is said to be wholly vexatious. On this topic, CASA contends that the ambiguity of the allegations indicates the assertion is at best an attempt to raise merits issues of a kind that the applicants could have agitated in the AAT. Specifically, in relation to the refusal to reinstate the charter operations, CASA says this is no more than a pleading of a conclusion without any material facts supporting it. There may be force in this submission by CASA but, again, I am not prepared to resolve these issues at a time when there is not even a suitable pleading let alone evidence. Nevertheless the argument is still advanced that as every complaint depends upon an alleged breach of civil aviation legislation, the appropriate avenue for pursuing such a complaint was an appeal from the various decisions of the AAT. On the topic of federal jurisdiction, the respondents had originally submitted in the Supreme Court that s 9 of the ADJR Act forbids Supreme Court judicial review of certain federal actions. However, the respondents also contend that every claim sought to be agitated by the applicants is dependent upon a determination that particular administrative decisions made under the CAA, that is, to grant or refuse to grant or to cancel, suspend or revoke a license, approval, authorisation or certificate were 'invalid' and/or ultra vires. The respondents reject the assertion that they misconstrued or misapplied relevant provisions of the civil aviation legislation. In any event, and more importantly for present purposes, they contend that an order for damages is not an appropriate remedy for an administrative action: Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637. (While this may be correct, that does not mean a claim for damages for negligence is necessarily unavailable). The applicants' argument is that the proceeding is a proceeding 'arising under an Act of the Commonwealth Parliament' and is thereby by virtue of s 39B(3A)(c) (sic s 39B(1A)(c)) of the Judiciary Act a matter in which the Federal Court has jurisdiction. Little argument was advanced on this contention from either party. The argument appears to be that because the complaints of the applicants turn on alleged contraventions of Federal Acts, that the complaints satisfy the requirements of the jurisdictional provision on which reliance has been placed. However, a mere colourable connection is insufficient. There is a distinction between the notion of a Federal statute 'lurking in the background' on the one hand and the right or duty in question owing its existence to a Federal statute. However, I would not be prepared to conclude at this stage that none of the claims advanced could arise '... under any laws made by the Parliament'. I am mindful that there are cases in which there are claims for damages for breach of contract or relief for breaches of trust when the property concerned owes its existence due to Federal law. Put on a broad basis, the applicants claim on this issue is that the licences which should have been granted or should not have been withheld are licences which owe their existence to the legislation which CASA is obliged to administer. As aviation operating licences can be created by no means other than application of Federal written law, it is at least arguable that this proceeding arises under an Act of the Commonwealth Parliament and that this Court has jurisdiction. In Macteldir Pty Limited v Dimovski [2005] FCA 1528 , Allsop J considered an application for costs orders against a solicitor and barrister based on alleged incompetence by those practitioners in propounding a notice of motion on behalf of the company in an earlier proceeding to enforce an agreement between the parties which resolved claims by the company of breach of copyright. His Honour found that the enforcement of a contract to settle a case (at least between the parties to the suit) concerning rights owing their existence to Commonwealth law fell within s 39B(1A)(c) of the Judiciary Act . There was no issue for decision under Commonwealth law. The matter, however, was one of federal jurisdiction, as arising under a law of the Parliament. This was so because the subject matter of the contract and of the trust was property owing its existence to Commonwealth law --- a quota for the importation of cars under the Customs Act 1903 and Customs Regulations. The subject matter of the contract or trust in such a case exists as a result of the federal law. This case is anything but clear. As to the remaining aspects of the proposed claim (after these rulings) I consider this Court has jurisdiction as the claims, or at least part of them, are in respect of the licences which owe their existence to laws of the Commonwealth Parliament. That Act was replaced by the Limitation Act 2005 (WA). However, most of the causes of action pleaded accrued prior to 15 November 2005 when s 47A of the Limitation Act 1935 (WA) was in operation. Arguably, the only claim that has arisen after 15 November 2005 is the broad assertion that CASA and the named respondents in early 2007 refused or failed to consider an application by Repacholi Aviation to reinstate 'charter applications' on its AOC. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose. (c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made. I tend to agree. CASA contends that s 47A extends to agencies and instrumentalities created by Commonwealth legislation: Smith v Australian National Line Ltd (1998) 159 ALR 431. (The Full Court's decision in Smith was the subject of appeal to the High Court but was overturned only in relation to constitutional issues unrelated to s 47A). CASA contends that the provision is in wide terms which extend to cover the acts or omission complained of by the applicants. Those acts or omissions did not arise from the exercise of a power that was only incidental to the public duties of CASA. No notice has been given by the applicants as required by s 47A and no application has been sought for an extension of time within in which to give a notice. As such, CASA contends that the applicants' claims are statute barred. For the applicants it is argued that when s 47A speaks of 'an Act' it is referring to an Act of the West Australian Parliament: Interpretation Act 1984 (WA), s 5. The applicants contend that the causes of action pleaded by the applicants are brought in respect of acts which if done pursuant to any Act are done in pursuance or in execution or intended execution of a Commonwealth Act or in respect of a neglect or default in the execution of duties and authorities stemming from a Commonwealth Act. The applicants also contend that even if s 47A could by its terms apply to the present proceeding, its operation would be prevented by reason of conflict with s 64 of the Judiciary Act . CASA argues that the practical effect of s 64 and s 79 of the Judiciary Act on State limitation Acts is to require courts to apply without any altered meaning any relevant limitations Acts to the Commonwealth instrumentality as though they were a subject ( Maguire v Simpson [1977] HCA 63 ; (1997) 139 CLR 362 at 376-377). (See also Smith 159 ALR 431 at 453). The applicants contend that CASA is an emanation of the Commonwealth of Australia. (c) the Minister may give CASA written directions as to the performance of its functions or the exercise of its powers. The applicants argue that s 79 of the Judiciary Act provides that the laws of each State or Territory including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. However, by s 64 of the Judiciary Act in any suit to which the Commonwealth or a State is a party, the rights of the parties shall as near as possible be the same and judgment may be given and costs awarded on either side, as in a suit between subject and subject. The applicants contend that by reason of the fact that it is an emanation of the Commonwealth, effectively performing what is a governmental function, CASA, is for the purposes of s 64 of the Judiciary Act , 'the Commonwealth'. See Maguire and Austral Pacific Group Ltd v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 at 153. By virtue of that section CASA's rights in litigation are equated to those of the ordinary citizen not to the rights of 'a very particular kind of defendant': see British American Tobacco Australia Ltd v Western Australia v [2003] HCA 47 ; (2003) 217 CLR 30 at [25] per Gleeson CJ. At first instance in Smith v Australian National Line (unreported, Supreme Court of Western Australia, 27 August 1996), Ipp J considering the limitation point as a preliminary issue in an action for damages for personal injuries brought against the defendant, ANL accepted that it was well established that State legislation cannot bind the Commonwealth. But followed what was said by the Full Court of this Court in Trade Practices Commission v Manfal Pty Ltd (No 2) (1990) 27 FCR 22 by Wilcox J (with whom Northrop J agreed) observing at 31 that to the extent 'that there is no interference with the property, revenue or prerogatives of the Commonwealth or with the performance of Commonwealth statutory functions, Commonwealth instrumentalities are bound by relevant State laws'. Section 47A properly understood, confers benefits. It does not therefore 'bind' the Commonwealth in that sense. Further, arguably, as the section does not in any way interfere with 'property, revenue or prerogatives of the Commonwealth or with the performance of Commonwealth statutory functions' there is no inconsistency between s 47A and any Commonwealth legislation. Accordingly, CASA was entitled to the benefit of s 47A of the Limitation Act which it has not received. It is to ensure that the phrase "excluding the Crown" in s 47A(1) is not construed as having the effect of excluding the entities referred to in s 47A(4)(a) from the protection afforded by s 47A(1). In other words, the intention is that, while the Crown is excluded from the operation of s 47A(1) , "a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown" is not excluded. Such entities are to be regarded as persons for the purposes of s 47A(1). It does not follows from this conclusion that a "person" in s 47A(1) is limited to the emanations of the Crown referred to in s 47A(4). Were that to be so, s 47A(1) would only confer protection on Crown agencies or instrumentalities for the acts described in the section. Several cases over a very lengthy period demonstrate that limitation provisions such as those contained s 47A(1) apply to entities other than Crown agencies and like bodies: see, for example, the cases cited in Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 605. If s 64 were to operate in the present case, it would not do so by putting the Government of Western Australia in the place of an agent of the Government of Western Australia; it would do so by putting the Government of Western Australia in the place of an ordinary citizen. Section 64 speaks of rights in a suit between subject and subject; not rights in a suit between subject and Crown agent. (The appeal was on a limitation act based summary judgment in favour of the State dismissing an action for monies had and received by the State in respect of an invalidly imposed 'tax'). The Limitation Act stipulates that s 47A applies to any act done in pursuance or execution or intended execution of any Act, or in the line of any public duty or authority. The use of 'or' evinces a Parliamentary intention to distinguish between acts performed pursuant to a Western Australian statute (that is to say, an 'Act') and acts performed in pursuance of public duty or authority and affords equal protection to acts falling in either category. CASA further argues that the acts in question were acts performed in pursuance of public duty or authority as contemplated in s 47A Limitation Act . In terms of its scope and operation, s 47A was intended to mirror the equivalent provision contained in the English Public Authorities Protection Act 1893 (Imp) (UK): see Smith 159 ALR 431 at 435, 444 and 448. In the context of the English Act, Australian courts have recognised that these words are directed to the carrying on of 'some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community': Renmark Hotel Inc. v Federal Commissioner of Taxation [1949] HCA 7 ; (1949) 79 CLR 10 at 16 and 18. It is not necessary, according to Smith 159 ALR 431 , that the public duty or authority be one of or in relation to the State of Western Australia (at 447-448). CASA contend that additionally, on both a literal and purposive interpretation of s 47A Limitation Act , the section is capable of applying to Commonwealth entities for the following further reasons: On a literal approach, the definition of a 'person' in the Limitation Act 'includes a body corporate' (by s 3). The use of the word 'includes' extends rather than restricts the definition of person. There is no definition of 'body corporate' in the Interpretations Act 1984 (WA). It would be reasonable though to treat CASA as a body corporate as its own legislation reflects in s 8 CAA and see also Alcoa of Australia Ltd v State Energy Commission (WA) (1995) 17 WAR 112. Perhaps more importantly on a purposive approach, the term 'person' was used in the English Act on which s 47A was modeled. It would be reasonable to expect that the term person should apply to all 'persons who are in some sense public authorities': Posner v Roberts [1986] WAR 1. CASA argues that acts performed in pursuance of a positive or proactive statutory duty imposed on an entity are generally considered acts performed in the exercise of a primary statutory function rather than pursuant to any incidental or ancillary power ( State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131 at 137-138 and 157). As the conduct was conduct which occurred in the active pursuit of positive obligations imposed on CASA by s 9 of the CAA, CASA argues that s 47A Limitation Act would protect any such acts. CASA also contends that the approach taken by the Supreme Court of Western Australia to s 47A Limitation Act in misfeasance cases is that the provisions will apply equally to those provisions: Carioca Pty Ltd v Water Authority of WA (Supreme Court, Master Bredmeyer, 11 April 1995, Supreme Court Library Number 950168), Bailey v Minister for Education [2000] WASC 50 and on the Court of Appeal, Minister for Education v Bailey [2000] WASCA 377 ; (2000) 23 WAR 149 (at [8]). In summary, CASA's submission is that to decline to apply s 47A Limitation Act to the present case would be inconsistent with intended policy embodied in the Act. It is at that point that potential injustice to a plaintiff is by the statute outweighed by the interests of the prospective defendant not to be further exposed to the expense and inconvenience of defending an action and not to be exposed to the liability which might arise. The applicants contend that as CASA is an emanation of the Commonwealth effectively performing what is a governmental function, it is for the purposes of s 64 of the Judiciary Act , the Commonwealth. Accordingly, CASA's rights in litigation are equated to those of the ordinary citizen not to the rights of 'a very particular kind of defendant' as explained in British American Tobacco Australia Ltd (at [25]) per Gleeson CJ. The specific submission of the applicants is that neither the Crown in the right of the State nor the Crown in the right of the Commonwealth can have the benefit of s 47A Limitation Act . For this purpose it is said that CASA is the Crown in the right of the Commonwealth. Even if this were not so, the remaining argument for the applicants is that assuming s 47A does apply in respect of the action against the individual respondents, it cannot affect the claim insofar as it relates to misfeasance in office as misfeasance in office does not involve an act falling within s 47A Limitation Act because it involves an act which is done otherwise than in pursuance of execution or intended execution of the relevant power and it involves not only a failure or neglect in the performance of a duty but the willful doing of an act outside the ambit of the execution of the duty. There are no material facts pleaded which are satisfactorily capable of supporting a claim of misfeasance in public office and accordingly, that aspect of the claim will not be allowed in any event. It follows that to the extent the limitation argument depends on the misfeasance claim, it cannot be considered. On present indications I consider there is force in the submission by CASA that the pre-2005 causes of action which the applicants would seek to ventilate are statute barred. It is possible, however, that they are capable of being protected by the combined operation of s 64 and s 79 of the Judiciary Act or possible that the State Act does not apply in the first place but that depends on what is left of the pleading. Once again, it is too early to reach a conclusion because the majority of the proposed pleading will not be allowed and the present statement of claim will be struck out. What will be left after that time may or may not be a statute barred claim but I do not propose to speculate at present. I have, however, set out the current state of the arguments as I understand them, both for completeness and in anticipation that their more elaborate development in oral argument may be taken into account in a future pleading, if any. In my view as will be seen, there is no basis for a claim founded on breach of a statutory duty either against CASA or the individuals and there is no basis for a claim in misfeasance. As will be evident, I do consider that, at least in theory, there is available, a claim in negligence. A claim in negligence may import as a particular of the duty owed, reference to the statutory criteria by which a duty should be discharged and/or it may refer to a failure to comply with a statutory obligation as being part of the breach of the duty which is owed. That is a different concept from suing for damages on the basis of breach of a statutory duty. On the material facts pleaded to date and foreshadowed in the proposed statement of claim in the minute under consideration, there is no such claim available. The principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered ( Caledonian Collieries Ltd. v. Speirs ; Benning v. Wong ) has been applied mainly to private Acts. However, it has been frequently applied in Australia to public authorities, notably public utilities, exercising powers under public statutes: Sermon v. Commissioner of Railways ; Essendon Corporation v. McSweeney ; Metropolitan Gas Co. v. Melbourne Corporation ; South Australian Railways Commissioner v. Barnes ; Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks ; South Australian Railways Commissioner v. Riggs ; Voli v. Inglewood Shire Council ; Birch v. Central West County District Council . While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority ( McSweeney ; Metropolitan Gas Co. ), the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law : Geddis v. Proprietors of Bann Reservoir ; London and Brighton Railway Co. v. Truman ; Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd ; East Suffolk Rivers Catchment Board v. Kent ; Riggs . And at least since the decision in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council , it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care. A duty of care had been held in cases such as Pyrenees Shire Council v Day [1998] HCA 3 ; (1998) 192 CLR 330. In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 ; (2002) 211 CLR 540 , Gummow and Hayne JJ (at [149]-[154]) held (footnotes omitted): An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board , reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde , is remote, in a legal and practical sense, does not suffice to found a duty of care. Between the Council on the one hand and the oyster consumers on the other, there stands, in the present case, an entire oyster-growing industry comprising numerous commercial enterprises, each of which, in pursuit of profit, engages in conduct that presents an inherent threat to public safety. That threat arises from the insusceptibility of oysters to effective and reliable tests to identify contamination of the type that eventuated here. In broad terms, the Council's statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration. However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein of independent commercial enterprises. Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests? . Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person? . Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? . Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)? . Would the imposition of the duty of care impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? . Is there any supervening policy reason that denies the existence of a duty of care? 85 If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff. Conversely, if any of the first four questions are answered in the negative or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise. Equally the degree of vulnerability of those conducting operations under the auspices of the air operations regime administered by CASA is significant. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. In that regard CASA relies on Commonwealth v Griffiths [2007] NSWCA 370 ; (2007) 70 NSWLR 268 at [125] - [131] . The applicants contend that Griffiths turns on a finding that the Australian Government Analytical Laboratories in carrying out the role of analysing a substance seized by the police and alleged to be a prohibited drug was playing an 'integral role in law enforcement' such that the statutory role and the duties of the statutory role were inconsistent with a common law duty of care owed to persons who might be affected by their actions. In one sense there may be a parallel with CASA's role in that regard. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. It was submitted that the relationship and the nature of the arrangements made between AGAL and the New South Wales police needed to be examined to determine whether the work undertaken by AGAL in relation to the analyses conducted by Mr Ballard was such as to give rise to a duty of care and if so, what the scope of that duty was. As Gummow J remarked in Roads and Traffic Authority (NSW) v Dederer (2007) 81 ALJR 1773 at 1784 [43]; 238 ALR 761 at 772 [43]: "... duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question". AGAL contends that it owed no duty of care to Mr Griffiths. It was submitted that the duty of care as alleged against it was, properly characterised, a duty to control Mr Ballard's exercise of the statutory power given to him under s 43 of the Drug Misuse and Trafficking Act to undertake analysis of the seized substances and to issue a certificate of analysis. It was submitted that no such duty existed: see Sullivan v Moody (especially at 580---582). The applicants argue that the question as to whether the statutory duty is inconsistent with the existence of a common law duty of care requires careful analysis of the precise statutory function being performed at the relevant time and the mere fact that the defending party is subject to a statutory obligation constraining the manner in which powers or discretions may be exercised does not of itself rule out the possibility that a duty of care is owed to a claimant (see Sullivan v Moody ). In Stuart v Kirkland-Veenstra [2009] HCA 15 ; (2009) 237 CLR 215 the Chief Justice also pointed out that where a body has a statutory power and exercises it in a way that is inconsistent with a duty of care, any claim is really a claim for damages for negligence. The Court at all times is concerned with the application of "private law notions of duty", albeit they are applied in the field of the exercise of powers under public statutes. Especially when the proposed pleading is far from complete. There is nothing in principle in the pleading which would render the cause of action the applicants propose to pursue as one which should be entirely struck out. At present it is inadequately pleaded. I would not be prepared at this stage to strike out the negligence plea. No statutory provision encapsulating those obligations has been identified. It appears, however, to be common ground that for a claimant to succeed in an action for breach of statutory duty, he or she must establish that he or she was a member of the class of individuals that the statute was intended to protect and that the injury was of a kind which was the object of a statute to prevent. But more importantly, from the respondents perspective, the dominant argument is that if the action for breach of statutory duty would have the effect of indirectly raising the correctness of an administrative decision, no action for breach of statutory duty would lie as the decision is more suitable for judicial review: Calveley v Chief Constable of Merseyside [1989] 1 AC 1228. Each of the claims in breach of statutory duty is based on an alleged breach of regulation which for the purposes of the present argument may be assumed to be a correct interpretation although as indicated elsewhere in these reasons, the interpretation is challenged by the respondents. CASA submits that the statutory scheme being of essentially public character does not disclose a legislative intention to accord to the applicants or persons such as the applicants a private right to sue for any breach of 'public' statutory duty. As noted in Stuart v Kirkland-Veenstra by Crennan and Kiefel JJ (at [142]), '[t]he requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty'. The statute, in effect, must 'oblige' the exercise of powers in the circumstances which prevail and do so in a specific or relevant way. Breaches which constitute an exercise of powers in a way that was either contrary to the views of the party affected by the decision or contrary to the merits or the interests of the applicants, could never, taken alone, constitute a breach of a statutory duty to ground a private cause of action in damages: Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 (at [20]). There is no private right for damages arising from the exercise of administrative powers when there is a statutory right of review of such exercise. As established in Jones v Department of Employment [1989] QB 1 (at 22 and 25), where an exercise of statutory power is subject to a right of review and the decision-maker exercises the power in good faith, the exercise of the power will not give rise to a common law duty of care: see also X v South Australia (No 3) [2007] SASC 125 (at [189] and [196]) and Gimson v Victorian WorkCover Authority [1995] 1 VR 209. The theory behind this principle is that even if some 'negligence' has been proven, it can be cured by an appeal process. The existence of the appeal process is sufficient to remove reliance on breach of any duty of care. This Court has reached similar conclusions in Scott v Secretary, Department of Social Security [2000] FCA 1241 ; (2000) 65 ALD 79 , Scott v Pedler [2004] FCAFC 67 and Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898. In Scott v Secretary , in the joint judgment of Beaumont and French JJ at [19] they said: We agree with the trial Judge that the Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question, given especially the existence in the legislation of particular mechanisms for the review of decisions made within the department. The conclusion was cited with approval by the Full Court in Scott v Pedler (at [93]). Conti J further stated at [101]: The authorities which have been cited in these reasons reveal a confined or restricted availability of any viable causes of action for damages at the instance of persons claiming to have been injured by the exercise of administrative power. So much has been exemplified by the High Court decisions in Crimmins , Sullivan , Graham Bailey Oysters and Shaddock , and by the majority judgment of the Full Federal Court in the earlier Scott litigation. ... I am unable to accept that there is a valid basis established for a claim in damages for breach of statutory duty. That is because there is no indicia in the statutory regime that such a claim should lie. In other words, the power must be exercised for an ulterior purpose, with the intention of injuring the plaintiff. See also Mengel at 347. The applicants argue that there is misfeasance in office where a person uses the power of his or her office not for the purpose for which it was given but for a collateral purpose, namely, to cause harm to a person subject to that power. The applicants claim they were members of the public to whom the respondents owed a duty to exercise their power legitimately, namely, only in the public interest and not for an ulterior purpose ( Cannon v Tahche [2002] VSCA 84 ; (2002) 5 VR 317 at [28] )). Similarly, the applicants argue that CASA and its officers owed the applicants a duty to exercise their statutory powers in good faith, reasonably and for a proper purpose, a duty stemming both from statute and from common law. Note 2: Section 187 of the Corporations Act 2001 deals with the position of directors of wholly owned subsidiaries of Commonwealth authorities. Note 3: Section 27A makes provision for persons who are also APS employees or Agency Heads. Note 2: This subsection is a civil penalty provision (see Schedule 2). Note 3: Section 27A makes provision for persons who are also APS employees or Agency Heads. The applicants argue that the common law duty to exercise statutory powers in good faith, reasonably and for a proper purpose appears from the following cases: Buck v Bavone [1976] HCA 24 ; (1975) 135 CLR 110 at 118 per Gibbs J (as his Honour then was) where it was held that where a public body is invested with statutory powers it 'must act in good faith; it cannot act merely arbitrarily or capriciously. ' Reliance is also placed on Westminster Corporation v London and North Western Railway Co [1905] AC 426 at 430 and Thompson v Randwick Corporation [1950] HCA 33 ; (1950) 81 CLR 87 at 105. I accept the respondents' submissions that the pleading of misfeasance and/or lack of good faith should be struck out. The applicants' allegation of misconduct by individual CASA officers who have made administrative decisions or are the signatory of various instruments are totally speculative. They are allegations without foundation. There is no factual basis pleaded for the assertions and the frank concessions made in the course of argument by senior counsel for the applicants makes it clear that the applicants have no material at present on which they can properly bring a claim against officers of CASA for acting in bad faith or, alternatively, acting recklessly. These pleadings are simply accusations made which on their face are vexatious. If the pleading survives and if discovery is given and additional material comes to light, the position may theoretically change. For present purposes, however, there is no basis upon which any of the claims against the individual officers can be maintained. All of the claims against the individuals in this proceeding will be struck out and/or disallowed in terms of any existing application to amend. The applicants have not sought pre-action discovery but have simply instituted the proceedings. Pre-action discovery would have facilitated not only expedition but the potential elimination of claims which without such discovery cannot properly be made. The proper course for the applicants in these proceedings was to pursue pre-action discovery to allow them, if granted, to obtain sufficient information to decide whether to commence proceedings and, if so, against whom. The High Court has recently reinforced the proposition that an application for leave to amend a pleading should not be approached on the basis that a party is, in effect, automatically entitled to raise an arguable claim subject to payment of costs by compensation. There is no such entitlement. An entire re-pleading is necessary --- there is no point in trying to save bits and pieces of the minute. I propose granting a period of six weeks within which the applicants can file an amended minute which should take into account the substance of these reasons. That minute will stand as the further amended statement of claim. Filing that amended pleading will not preclude CASA from challenging the pleading. CASA should have the costs of this motion and any costs thrown away in any event. I will order that: The amended statement of claim be struck out. The minute of proposed further amended statement of claim be disallowed. The applicants have six weeks to file and serve a further amended statement of claim reflecting these reasons, the filing and service of which is without prejudice to the respondents' right within 28 days to challenge that pleading. The applicants are to pay the respondents' costs of the motions in any event. I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

application for dismissal of proceedings under s 31a of the federal court of australia act 1976 (cth) alternatively for the statement of claim to be struck out whether reasonable cause of action disclosed whether court has jurisdiction whether matter 'arising under any laws made by the parliament' whether s 47a of the limitation act 1935 (wa) applies whether causes of action statute barred proceedings against civil aviation safety authority (casa) and officers of casa alleged negligence in performance of statutory duties existence and scope of duty of care whether statutory duty of care owed by casa or its officers whether common law duty of care owed by casa or its officers not to cause economic loss whether misfeasance by officers of casa whether private right of damages available to applicants practice and procedure torts

John Holland and one of its subsidiaries, GridComm Pty Ltd ('GridComm') cross claim against Mr Serventi alleging contraventions of s 181 and s 182 of the Corporations Act 2001 (Cth), and breaches of fiduciary and contractual duties. 2 As was acknowledged at the hearing, the case boils down to whether Mr Serventi so misbehaved as to warrant his summary dismissal. In my opinion he did. The alleged conduct in question, which is itself largely uncontroverted, comprised four kinds of alleged serious and wilful misconduct. However, as the case unfolded, it is sufficient to deal with only one of these, namely, Mr Serventi's taking of John Holland's vehicles for the private use of his son, Anthony, who was not an employee of John Holland. Without prejudice to the major issue, Mr Serventi agreed to pay for reasonable loss incurred by John Holland in relation to those vehicles. 4 In response to the alleged misconduct, John Holland summarily terminated Mr Serventi's employment, without payment in lieu of notice; however, other entitlements such as annual leave and superannuation were paid in full. Mr Serventi claims that he reasonably or at least actually believed that he was entitled to take the vehicles for his son's use. 6 An employer is entitled to summarily dismiss an employee for serious and wilful misconduct. Such misconduct must be of a kind that, as a practical matter, is likely to make maintenance of the contract of employment impractical. Some employees have special obligations of conduct and confidence that are relevant to such a question of misconduct. A senior manager of a company who is also a director is an example. Mr Serventi was that. The notion that an employer, in such a case, does not enjoy a right summarily to terminate the relationship with such a senior employee, would appear to be an odd one: one out of step with common sense. To suggest that the common law would effectively insist that such parties continue in the personal, and often quite close and trusting, relationship of employment, as if nothing had happened, would seem remarkable. The effect of this would be to demand the employer put out of mind (as it were) the discovery of the misconduct, and continue to pay the employee under the supervening service agreement as if nothing had occurred. This is a conclusion to which a court would need to be driven by clear legal authority or by singular factual circumstances of the case, so far undisclosed in this matter. ' (Footnotes omitted. 9 Dishonest misappropriation of his employer's assets was alleged against Mr Serventi. Such allegations are serious in the sense discussed in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. As Dixon J put it, '[they affect] the process by which reasonable satisfaction is attained' by the Tribunal of fact: Briginshaw at 363. In such cases, '"reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences': Briginshaw at 362. On 1 February 2003 John Holland acquired Transfield's business and Mr Serventi and most other Transfield employees became employees of John Holland. 11 At all relevant times Transfield was a privately owned company wholly owned by Transfield Holdings Pty Ltd ('Transfield Holdings'). Forty percent of the staff employees and thirty three percent of the wages employees are more than fifty years old. Small fiefdoms were built up with people protecting their own patch. Despite the restructure carried out there is still, from the older employees, a good deal of resistance to this. It is well known that cultural change is difficult to achieve within such groups unless a structured approach is taken to the change management process. Indeed, there had been a time when only the founders of Transfield, Mr Guido Belgiorno-Nettis and Mr Salteri were more senior to him. He rendered great service for Transfield and was highly valued by its founders. 13 At various times during his many years at Transfield, a number of benefits, beyond the usual, were conferred upon Mr Serventi, for example, a loan to assist in the purchase of a house. These benefits were conferred in an ethos at Transfield which, especially before the rigours of the Fringe Benefits Tax regime introduced in the mid 1980's, allowed senior managers a considerable amount of latitude and accorded them some informal perquisites. For example, it was within the authority of managers to allow employees to make reasonable, modest use of Transfield equipment for private, non-work purposes, when the equipment was not at the time required for business purposes. (The movement of the equipment into an employee's custody was however documented. At a staff meeting in December 2002, employees were addressed by Mr Belgiorno-Nettis and Mr Wild on the implications of the sale. Mr Belgiorno-Nettis assured employees that John Holland had agreed to employ all Transfield employees on the same terms and conditions that had applied during their time at Transfield. Mr Wild gave a similar assurance that 'as far as possible' employment with John Holland would be offered on the 'exact same terms and conditions' as those applicable at Transfield. 15 Around this time, Mr Serventi had a meeting with Mr Wild. The two men discussed several staff members within Mr Serventi's division, and also Mr Stephen Sasse, who was the General Manager of 'Human Resources and Industrial Relations' at Transfield, and later the General Manager of 'Human Resources, Industrial Relations and Safety' at John Holland. Mr Serventi told Mr Wild that he did not use Mr Sasse in his division, and indicated his disapproval of Mr Sasse's approach to industrial relations. Mr Wild later repeated the substance of this conversation to Mr Sasse, although the timing of this disclosure was disputed: Mr Wild said that it occurred prior to Mr Serventi's employment being terminated, and that at that time he formed the opinion that neither Mr Serventi nor Mr Sasse 'was particularly fond of the other'. Mr Sasse asserted that he was not informed of Mr Serventi's views until after Mr Serventi had left GridComm. It does not matter. I accept that Mr Sasse and Mr Serventi did not suit each other and that Mr Sasse would not have been sorry to see Mr Serventi in a position where he might be dismissed for misconduct. 16 At Mr Serventi's suggestion, either Transfield or John Holland paid for Transfield employees in Mr Serventi's division who were considering contracts of employment with John Holland to have legal advice. Around this same time, Mr Sasse had commenced monitoring the emails of an employee, Mr Jason Power, who worked under and reported to Mr Serventi. Mr Power was then the General Manager of a Transfield subsidiary. Mr Sasse explained the email surveillance (in a facsimile to John Holland's legal representatives with the subject heading 'Serventi') by reference to the view that 'we [John Holland] knew he [that is, Power] was being mischievous'. This is unattractive but does not impinge on Mr Sasse's credibility which, as to essential matters, I generally accept. 17 In late December 2002, Mr Serventi made an unsuccessful proposal to Transfield for a 'management buyout' of his division of Transfield, and then unsuccessfully approached Mr Wild about a future management buyout from John Holland. You'll remain in the same position and I want to ensure that all your key people are in the same position. You will maintain all the existing systems in managing all the people with the same traditions and customs you had in Transfield. I want you to keep the same culture. I want you to be totally comfortable'. For this purpose, 'minimum change' and 'business as usual' had the meaning that 'people will generally continue to work in the same office for the same boss doing the same thing'. However, whilst we did want to keep the division intact and operating essentially as it had previously, this did not mean that we would compromise the governance requirements that dictated the behaviour of a public company. There was some dispute about which letters in what form passed between whom, but that dispute does not bear on the outcome of the case. 20 On 31 January 2003, Mr Serventi signed the letter of offer in an amended form, having made deletions by hand to the letter of offer and the terms and conditions document. A memorandum from Mr Serventi to Mr Sasse regarding the letter of offer was also provided. One week later Mr Serventi received a letter from Mr Wild setting out the terms of John Holland's retention bonus plan. 21 On 1 February 2003, John Holland formally acquired the business of Transfield. On 1 February 2003 Mr Serventi, and the vast majority of Transfield employees, were transferred to John Holland pursuant to the arrangements between John Holland and Transfield. Mr Serventi commenced employment with John Holland as General Manager of Gridcomm and shortly thereafter became a director of GridComm. Gridcomm was a John Holland subsidiary and, at relevant times, its business included the design and construction of power transmission systems and telecommunications infrastructure. Mr Serventi was given the privilege of naming GridComm --- a gesture on the part of Mr Wild intended to reassure Mr Serventi as to the level of control and direction he would have over the GridComm division as General Manager, or, in other words, to 'give him a feeling that he had his own empire, or the empire that he had [at Transfield] was to continue'. Suggestions of misconduct by Mr Serventi --- a John Holland conspiracy? Among other things, Mr Sasse made inquiries of John Holland staff and retained PriceWaterhouseCoopers ('PWC') to conduct inquiries including a 'suspicious transactions analysis' and arrange covert surveillance of the Serventi family home. As early as the engagement of PWC, Mr Sasse had as an objective to be 'rid of Serventi' if the evidence warranted it. However, I reject the suggestion that either Mr Sasse or Mr Wild had no serious objection to Mr Serventi's giving his son the use of the vehicles and that they did not honestly believe that such warranted his dismissal for misconduct. I also do not believe that Mr Sasse acted out of mere general enmity towards or dislike of Mr Serventi. 23 Over the following couple of months, and in light of information obtained from the investigation into Mr Serventi's conduct, Mr Sasse, in consultation with Mr Wild, considered John Holland's options for dealing with what appeared to be the alleged misconduct Mr Serventi. 24 This process occurred against a background of John Holland's preparations for the restructure of GridComm. It was put by Mr Serventi that the reorganization would make him surplus and that the complaints by the John Holland executives about his arranging the use of the vehicles by his son was exaggerated and used as an excuse to avoid paying his compensation for redundancy. 25 On 2 October 2003, Mr Serventi attended a meeting with Mr Wild and Mr Sasse during which Mr Wild said the several allegations relied on by John Holland to Mr Serventi. I've certainly let my son use a car if it's spare when his own car is broken down as I did at Transfield. I have done this many times for others with Transfield'. The company had vehicles for sale and I selected one of the these while it was sitting there. ' The only claim that anything was justified by past practice at Transfield was made in relation to another John Holland complaint, namely Mr Serventi's use of company employees at his own home. Mr Serventi said that such use was occasional and 'It was done at Transfield in the old days'. Mr Sasse's brief notes taken at the time of this interview record Mr Serventi as saying: 'number of cars for sale'. 27 Mr Wild and Mr Sasse acknowledge that, later in the conversation, after he was handed a letter terminating his services 'on the grounds of serious and wilful misconduct'. Mr Serventi said 'I can't accept it was wilful misconduct'. When Mr Wild asked what else it was, Mr Serventi said 'it was allowed in Transfield. Someone in my position gets those kinds of benefits in Transfield'. 28 It is fair to say in Mr Serventi's favour, that he was rather 'ambushed' by what seems to have been a torrent of questions and no warning. Nevertheless, this is not a case where the employer was obliged to accord procedural fairness of the kind that many public employees would have as their right. (The statement of claim alleged that there was an implied term in the contract of employment to give Mr Serventi such a right but, not surprisingly, no more was heard of it in the case. No particular circumstances were shown to warrant the implication, nor is such a term implied into employment contracts generally). 29 The upshot of the meeting was that Mr Wild forthwith terminated Mr Serventi's employment without payment in lieu of notice or for redundancy, although his leave entitlements were paid out. Mr Serventi was informed by letter that his employment had been terminated on the basis of serious and wilful misconduct. 30 Shortly after Mr Serventi's departure from John Holland, GridComm was restructured. As mentioned earlier, the substance of this conduct was ultimately, as I understand it, admitted by Mr Serventi. It is the context and significance of such conduct and Mr Serventi's state of mind about it that remained in contention. 32 It was a condition of Mr Serventi's contract of employment that John Holland would pay for him to have a privately owned motor vehicle for business and other use. The contract provided that Mr Serventi's 'Total Fixed Remuneration' would include the costs of meeting this requirement. The written contract contained no term that might entitle Mr Serventi to use any other John Holland or Gridcomm vehicle for private purposes. 33 In September 2002, Mr Serventi instructed a subordinate, Mr Frank Maggio, the 'Human Resources Coordinator' for Mr Serventi's Transmission division to make cars available to his son on several occasions. Mr Serventi asked Mr Maggio whether there was a four wheel drive vehicle (4WD) in good condition available for his son. Mr Maggio indicated there was such a vehicle available. 34 A day or so later Mr Serventi and Anthony came to pick up the vehicle. Mr Serventi rejected the one offered by Mr Maggio, saying that it was an old vehicle, not in good enough condition. Mr Maggio said it was the 'only 4WD ute available'. Mr Serventi instructed him to take another 4WD vehicle from another employee, Mr Rosato, who was on sick leave and give the latter another vehicle. 35 Mr Rosato's vehicle had been allocated to him for several years in his capacity as a Transmission division supervisor. The vehicle was not a 'pool' vehicle but part of Mr Rosato's remuneration package. As such there was no log book for it. Mr Maggio then gave Mr Rosato a substitute Toyota Corolla which was 'the office pool vehicle'. Mr Rosato was not happy about this. I would ordinarily question an employee taking a Tool of Trade pool vehicle as to when the vehicle would be returned and what project it was needed for. If it was for personal use, it had to be approved. However, Mr Serventi was my boss and had an authoritarian style. If anyone else was to use a vehicle for personal use, they would have to get authorisation directly from Mr Serventi in his capacity as General Manager. Therefore I did what Mr Serventi told me to do without questioning him. Mr Serventi agreed to do so. It was returned in a damaged condition. Mr Serventi asked whether there was another car available. Mr Maggio told him that the only one was a Toyota Corolla, the 'office pool vehicle'. That vehicle was used for work errands by office staff. Mr Serventi said 'It will have to do. Give it to Anthony in exchange'. This was done. The Corolla was delivered to Pymble (where Mr Serventi's home was) by another GridComm employee, Mr Northcroft. 37 In August 2003 Mr Serventi told Mr Maggio that the Corolla needed a service and instructed Mr Maggio to make another car available while the service was being carried out. Mr Maggio arranged for a third vehicle, a Camry station wagon to be provided. On 12 September 2003, by arrangement between Mr Serventi and Mr Maggio, Anthony came in and exchanged the Camry for the Corolla. 38 The second and third vehicles had company log books. Mr Maggio logged the second car as having been delivered 'to Pymble' by Mr Northcroft and being used by Mr Serventi, during the three and a half months his son had it, for 'various T/systems' trips. He made a similar entry in respect of the third vehicle, the Camry, when it was returned and Anthony again took the second vehicle, the Corolla. He admitted to having instructed Mr Maggio to assign a spare pool car to his son and that it was used by the son. However, Mr Serventi claimed an entitlement so to arrange matters, on the basis of a continuance of an alleged 'custom and practice' at Transfield. Such continuance, he claimed, was a condition of his employment at John Holland. In short, Mr Serventi claimed that John Holland had authorised such conduct. The allocation was in accordance with the needs of the particular project a person was working upon. At no time during my employment at John Holland was I ever informed or was it suggested to me, that the allocation of pool vehicles was not within my authority or that the authority I had at Transfield was now different at John Holland. Indeed, I understood from the conversation I had with [Mr Wild] , that I was to have the same authority I had at Transfield --- " nothing was to change only the sticker ". ' (Original emphasis . On analysis none of the examples singly, nor all collectively, demonstrated any such thing. There were instances of short term favours to employees for genuine emergencies; no doubt (I would accept) short-term loans to employees of trucks for local carrying, again as a favour, and so on. The only long-term provision of a Transfield vehicle pointed to was for Mr Serventi's witness Jason Power. But that was arranged with Mr Power's supervising manager and there was a practical and readily understood justification for it from Transfield's viewpoint. 41 There was no such justification for Mr Serventi's equipping his son for long periods with a company car, involving substantial private use of the car by his son. Anthony at most had done a few weeks' vacation work for the company in another State. There was no need or desirability that either Transfield or John Holland should foster especially good or friendly relations with him. Anthony had no urgent need which might naturally excite a compassionate response by his father's employer. Mr Serventi was handsomely remunerated including by provision of a good quality vehicle made available for his private use. 42 Mr Serventi's family was a close one. It is very likely that he knew that substantial use was being made of the vehicles he had put into his son's possession. 43 Anthony did not give evidence. 44 Thus the first car, the 4WD utility, was taken for over seven months; the second car, the Corolla sedan, was initially taken for over four months, and then later for a period of approximately two weeks; and the third car, the Camry station wagon, was taken for approximately three weeks. In consequence, Mr Serventi arranged for his son the continuous availability of a company vehicle for more than a calendar year. Over almost the whole of that year substantial use of the vehicle was made --- roughly a tank of petrol per week was used. 45 At a late stage in the trial, Mr Bruce James, the CEO of Transfield between 1999 and 2002 (having taken over from Mr Belgiorno-Nettis), swore an affidavit tendered by the respondents. He was not required for cross-examination. Mr James had been employed in various positions at Transfield since 1975 and was asked to comment on several 'assumptions' pertaining to Mr Serventi's time at Transfield. I did not know that Mr Serventi had ever engaged in this practice. If I had been asked by Mr Serventi to authorise such a practice I would have refused to authorise it. I was not asked to authorise this practice'. I did not know that Mr Serventi had ever engaged in this practice. If I had been asked to approve such a practice I would not have agreed. My answer would not change. In response, Mr James stated that Mr Serventi was not entitled to do so, and that Mr James was unaware that such directions had been issued by Mr Serventi. 48 In my view, there was no custom and practice at Transfield as alleged by Mr Serventi. Nor was there any basis for him to think that there had been. It is an affront to common sense to suggest that a senior manager in a company would have the right or would think he might have the right, without at least securing the express agreement of the person or board to whom he answered, to make a motor vehicle available for substantial and entirely private use over a lengthy period by a relative, in circumstances where that relative had no special or urgent need for the vehicle. Mr James' evidence must be accepted. 50 There was a John Holland code of ethics generally made available to employees. It stressed, among other things, the need for 'integrity' and 'using company assets and resources only for legitimate business purposes'. Common sense and such an approach would indicate the necessity for visible scrupulosity by managerial staff in dealing with company assets. 51 The introduction and policing of the Fringe Benefits Tax regime and necessary accounting procedures for compliance, in existence since the 1980's, was in general, known to Mr Serventi. FBT requirements were taken, both at Transfield and John Holland, to require strict accounting for the value of the private use made by employees of company assets and of company funds expended for the private benefit of employees. As a senior manager, Mr Serventi knew about this. 52 On the take-over of the Transfield business, John Holland executives including Mr Wild were at pains to explain to the incoming Transfield staff, including managers, the high accounting standards and levels of practice regarded by John Holland as necessary and appropriate to the operations of a subsidiary of a public company. This must have percolated through to Mr Serventi. 54 Mr Serventi certainly did not tell Mr Maggio to ensure there were no such records and it is likely that he would have known (and during the relevant period he did come to know) that there would be records of the assignment of the company's vehicles to him. 55 But he also believed, in my opinion, that Mr Maggio had enough wit to see to it that the records did not immediately show that Mr Serventi was taking the cars simply to give them to his son. Mr Serventi was the 'boss' of Transfield and later of GridComm. He had done Mr Maggio some favours in the past. In my opinion, the justified inference is that he believed that Mr Maggio knew which side his bread was buttered on. He did not need to tell Mr Maggio what to do. 56 As to the rest of the paper trail, (the petrol card records and so on), whatever Mr Serventi's state of mind about them, he did not desist from a course of conduct that, even if not in its actual inception, after some period --- a month at the most, had become dishonest, on account of those likely records. Failure to advert to the records or a belief in his own indispensability or invincibility may well have accounted for this. I attended to the evidence on this matter without, I trust, undue naivety or a blind faith in the captains and lieutenants of industry. Mr Serventi's case in this respect was simply not made out on the entirety of the material. He was, on the evidence, bona fide dismissed for serious misconduct, even if such dismissal had other benefits for John Holland and for Mr Sasse's feelings in the matter. He presented a forlorn but attractive figure --- an old lion of the Australian construction industry; encouraged by the old guard at Transfield to rule his divisional empire; a man who would look out for his own loyal employees; a man, I originally thought, who might have thought some minor, unorthodox gifts were in his power. 60 As the case unfolded and the sheer scale of the appropriation of the cars to his son became more clearly in focus, it simply became less and less possible to give fair expression to such sentiments. Ultimately Mr James' evidence delivered the coup de grace . Mr Serventi's evidence thereafter was unimpressive and undermined what had been an attractive demeanour. 62 This is not a case where what is in issue is whether the application of the law would result in a 'harsh' outcome. Mr Sasse was not sorry to see Mr Serventi go. Some other employer might, possibly, despite the seriousness of his misconduct, at least have offered him the chance to resign but John Holland was not obliged to do this. If an employee gives a fellow employee or a supervisor who dislikes him just cause for his dismissal, he cannot complain at law if that lawful consequence follows. 63 There was only Mr Serventi's evidence to suggest a 'custom and practice' at Transfield that might justify his behaviour, and analysis of his stated experiences and examples did not support the existence of any such arrangements. There was unchallenged evidence from Mr James that at Transfield Mr Serventi had no right to do what he did. There is no adequate reason then as to why Mr Serventi would not have understood this. He was unable to point to any real precedent with Transfield. 65 In my view Mr Serventi did not believe he had such a right. 67 John Holland was entitled, by Mr Wild, summarily to terminate Mr Serventi's employment. His application must be dismissed and, except as to some specific matters, with costs. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

the contract of service and rights, duties and liabilities as between employer and employee discharge and breach circumstances justifying dismissal misconduct employment law

The Tribunal had found that it did not have jurisdiction to entertain the appellant's application. 2 The appellant is a citizen of Pakistan who arrived in Australia on 6 July 2005. He entered on a temporary business visa. On 9 August 2005 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. In his application for a protection visa the appellant claimed to have a well founded fear of persecution because of his membership of the Pakistani People's Party and his role as a human rights activist. The appellant claimed that he had been targeted by Pakistan Muslim League supporters and that he feared the ruling authorities and police. 3 On 10 October 2005 a delegate of the first respondent refused to grant the appellant a protection visa. Notice of the decision was sent to the appellant by registered post. The letter was dated 10 October 2005 and was addressed to the appellant at the address given by him in his application form. On 23 December 2005 the appellant applied to the Tribunal for a review of the decision. 4 On 23 January 2006 the Tribunal wrote to the appellant informing him that the Tribunal had no power to consider the application because it had been lodged out of time. The appellant sent the Tribunal a letter dated 13 February 2006 acknowledging that the application had been late lodged and explaining that this had occurred because his Migration Agent, Dr. Zahirul Hoq Mollah, had failed to contact him to inform him of the decision of the delegate of the first respondent. The appellant claimed that he had contacted his Migration Agent on 20 August 2005 informing him of a change in address and completing a form 929. He assumed that it would be sent to the Department but did not know if it had been sent. 5 The appellant claimed that he only became aware of the decision of the Tribunal when he contacted the Department of Immigration and Multicultural Affairs on about 20 December 2005. He had been unable to contact his Migration Agent throughout September, October and November. He spoke to his Migration Agent's wife in December and she informed him that his Migration Agent had departed for overseas. 6 The appellant claimed that he had since learned of the deregistration of the Migration Agent and claimed that the Migration Agent had not legally been able to provide migration advice when he provided advice to the appellant. The Tribunal was satisfied that the contents of the notice of the of the decision of the delegate complied with the requirements of s 66(2) of the Migration Act 1958 (Cth) ("the Act "). The Tribunal found that the appellant did not give the Department the name and address of an authorised recipient for the purposes of s 494D of the Act or informed the Department of a new address for service. The decision advice was sent to the correct address and the application for review was not received by the Tribunal until the prescribed period had expired. He did so on various grounds. The only ground alleging error by the Tribunal was that it had erred in holding that it did not have jurisdiction to review the delegate's decision. The other grounds alleged error by the delegate. In an "amended application", the appellant requested that the Federal Magistrates' Court accept documents relating to his factual claims. The decision by the Tribunal not to entertain the application did not involve jurisdictional error. It was the only decision which, in the circumstances, the Tribunal could have made. The Federal Magistrate did not consider that Dr Zahirul Hoq Mollah had been authorised by the appellant to act as his authorised recipient. 2. The judgment involved a breach of procedural fairness as there was no public information to indicate that Dr Zahirul Hoq Mollah was someone who was not a fit and proper person to conduct a review. His licence had been suspended on 6 June 2005. Information was not forwarded to the Department of Immigration and Multicultural Affairs. The appellant was disadvantaged because he was not properly notified of the decision of the delegate of the first respondent. 3. The Tribunal did not consider the duties of the Migration Agent with regard to the communication received from the appellant. 4. The Department of Immigration and Multicultural Affairs acted in such a way as to restrict access to a fair consideration of the grounds for the appellant's claims. 5. Error of law on the face of the record. It was alleged that the record showed that the appellant was sent a registered letter addressed to the address given at the time the application was lodged. The letter was returned to the Tribunal thereby demonstrating that the Migration Agent or the Department of Immigration and Multicultural Affairs did not carry out their duties as required by law. 11 At the hearing of the appeal before me the appellant appeared in person. He had the assistance of an interpreter. He said that he had relied on Dr Mollah and had assumed that Dr Mollah had acted appropriately in dealing with the Department on his behalf. 12 Although the appellant claims that his late application occurred because of the negligent conduct of his Migration Agent it is notable that he did not notify the Department that he had an agent acting for him. In any event, as the Tribunal and the learned Magistrate have held, the application was lodged a week late. No appellable error was made. 14 The appeal should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

no point of principle migration

She and her husband arrived in Australia on 7 April 2002. They made separate applications to the Department of Immigration and Multicultural Affairs for protection visas. Those applications were refused on 21 June 2002. The appellant and her husband sought review of that decision in the Refugee Review Tribunal (the Tribunal). The delegate's decisions were affirmed by the Tribunal on 25 September 2003. The appellant and her husband sought review of the Tribunal's decisions by the Federal Magistrates Court. On 25 May 2005, the Federal Magistrates Court, by consent, set aside the Tribunal's decisions and remitted them back to the Tribunal to be determined according to law. The matters came back to the Tribunal differently constituted and on 17 October 2006 that Tribunal affirmed the decision not to grant the protection visas. 2 In relation to the appellant the Tribunal accepted compelling evidence that Falun Gong practitioners currently face harassment or more serious harm in China and that they have done so since Falun Gong was declared an illegal cult there in 1999. The claims of the appellant and her husband relied entirely upon the contention that they are, or were, Falun Gong practitioners. The Tribunal identified as the key preliminary issue whether it could be satisfied that either the appellant or her husband was or might be perceived by Chinese authorities to be a committed Falun Gong practitioner. 3 The Tribunal found in respect of the appellant that the vagueness of her evidence cast doubt on the plausibility of her claim to have done Falun Gong exercises in China between 1995 and 1999. It was said also that she had given internally inconsistent evidence as to whether she started her Falun Gong practice before or after it was declared illegal by Chinese authorities. The Tribunal observed that the official announcement would have been so significant that a genuine practitioner would have no difficulty recalling whether he or she had started the practice while it was still legal to do so. 4 The Tribunal also found that the appellant's claims were internally inconsistent in relation to her involvement in underground or political or protest activities in China. She claimed that she had tried to get her mother released from detention while she was still in China, yet later told the Tribunal that her mother was not detained until after she left China. The Tribunal considered that she was not truthful about her mother having been detained at any time and about her own efforts in that regard. It noted that there were inconsistencies between the appellant's evidence and that of her husband about when she had carried out Falun Gong exercises in Australia and where she most recently did them in public with him. 5 The Tribunal also referred to the appellant's claim to have been involved in protest activities at the Chinese Consulate against the persecution of Falun Gong practitioners while in Australia. She was unable to describe any such activities at the most recent hearing and was very vague in her responses about her past anti-government activities. The Tribunal concluded that she had not been truthful when she claimed to have been a Falun Gong practitioner and to have been wanted by authorities as a result. Although she may occasionally have participated in Falun Gong activities in Australia the Tribunal was not satisfied that she did so other than for the purpose of strengthening her claim to be a refugee. It had regard to s 91R(3) of the Migration Act 1958 (Cth) (the Act) and disregarded such activities for the purpose of determining whether she had a well-founded fear of Convention- related persecution in Australia. 6 In the end the Tribunal was satisfied that if the appellant were to return to China she would not be interested in carrying on Falun Gong practice or participating in dissent activities of any sort. To the extent that her daughter would be unable to gain access to some State assistance because of the appellant's cancellation of her household registration, the Tribunal was not satisfied that any such difficulties had arisen from a perception by the authorities that she was a Falun Gong practitioner or an opponent of the government. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, and on that basis affirmed the delegate's decision. The decision was not supported by evidence and materials. He reviewed the Tribunal's findings and in relation to the first ground, that is failure to consider information supplied by the appellant, he noted that the appellant had written a letter to the Tribunal in response to a letter it sent pursuant to s 424A of the Act. In that letter she had made submissions about how certain evidence should be treated. She had clarified some aspects of her evidence and repeated certain factual allegations. Her written response was recorded in the Tribunal's reasons. There was no evidence before his Honour to support the claim that the Tribunal did not consider her response. 9 As to the claim of bias, his Honour noted that the appellant did not specify whether she alleged actual apprehended bias. There was no transcript of the hearing before the Tribunal in evidence before the Federal Magistrates Court. There was nothing in the Tribunal's decision record which suggested that it had approached the application with a closed mind. There was no persuasive evidence to support the allegation of bias and the Federal Magistrates Court rejected it. 10 In relation to the claim that the Tribunal failed to provide adequate independent information, his Honour observed that the ground suggested that it was for the Tribunal to undertake inquiries to identify relevant independent country information. The Tribunal had no obligation to undertake such inquiries. It was for it to determine which country information it wished to use in the course of reaching its conclusion. I note that the independent country information, such as it was, supported a finding by the Tribunal that was favourable to the appellant that Falun Gong practitioners face harassment or more serious harm in China. It is not apparent what further benefit the appellant would have been able to derive from additional independent country information. 11 Then it was said that the Tribunal relied on wrong information and his Honour said it was for the Tribunal to determine which facts it chose to rely upon in reaching its decision. Unless there was an error in respect of a jurisdictional fact, which was not the case, the Federal Magistrates C ourt had no power to substitute its own view of the facts for those of the Tribunal. There was no basis for the claim that the decision was not supported by evidence and materials. 12 In her brief remarks to this Court this morning, the appellant really complained about the fact that she was not believed by the Tribunal. The question whether she was believed or disbelieved by the Tribunal was a matter for the Tribunal having regard to the evidence before it. It was not open to the Federal Magistrates Court nor is it open to this Court to substitute its own view of the facts for those of the Tribunal. 13 Nothing in the materials before me today , in the decision of the Tribunal or that of the Federal Magistrates Court, indicated any basis upon which I could be satisfied that there was jurisdictional error on the part of the Tribunal. The appeal will be dismissed. The appellant is to pay the first respondent's costs of the appeal fixed at $2,551 .

judicial review protection visa appeal from dismissal of judicial review application in federal magistrates court no jurisdictional error no merit in appeal appeal dismissed no question of principle migration

2 The circumstances of the case are these. The applicant filed an application for judicial review on 27 January 2006 in the Federal Magistrates Court. He sought review of a decision made by the Refugee Review Tribunal on 6 December 2005, affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. In support of his application, and pursuant to r 44.05(2) of the Rules, the applicant filed an affidavit which said virtually nothing of substance about his complaint concerning the Tribunal's decision although it did assert two grounds. Part 44 , which is constituted by the whole of r 44, is a special part of the Rules applicable only to migration cases: see r 44.02. 3 The Minister filed a response on 9 February 2006 under r 44.06, opposing the application. The grounds put forward by the Minister are set out in the reasons for judgment of the learned Federal Magistrate. 4 The matter came before the Federal Magistrate on 2 March 2006. This was the 'first court date': see r 44.11. The solicitor appearing for the Minister submitted that the applicant was merely seeking merits review, but she did not, as I was told by counsel for the Minister today, urge that the matter proceed immediately to a show cause hearing: see r 44.11(a). 5 The Federal Magistrate invited the applicant (quoting from her Honour's reasons) 'to put forward an oral argument in this show cause hearing'. It thus appears that her Honour had determined that there should be an immediate show cause hearing under r 44.12: see r 44.11(a). This meant that if the applicant was unable to raise an arguable case for the relief he claimed, it would be open to her Honour to dismiss the application without proceeding to a final hearing. The Federal Magistrate explained to the applicant that she had taken this course because, on her reading of his application and the Tribunal's decision, it appeared to her that no arguable case could be demonstrated. 6 The applicant then addressed the court through an interpreter. He was, however, unable to elaborate upon his complaints, which included that the Tribunal decision was 'made with error of law'. 7 The Federal Magistrate considered the Tribunal's reasons and concluded that no arguable case had been disclosed in the application or by the oral argument. Accordingly, the application was dismissed. A dismissal under such circumstances is characterised by the Rules as 'interlocutory': r 44.12(2) so provides '[t]o avoid doubt' (sic). 8 In documents filed prior to this hearing and in his oral submissions made today in Court through an interpreter, the applicant says, in effect, that he was taken by surprise by what occurred before the Federal Magistrate. He submits that he had no prior notice that what occurred at the hearing might happen and that, basically, he attended court thinking that the hearing before the Federal Magistrate was, in essence and as I understand him, a procedural formality. 9 The problem he faced before the Federal Magistrate was that he had made claims that were difficult to comprehend and which had not been formulated with any degree of persuasiveness or particularity. The applicant says, and I have no reason to disbelieve him, that he asked the Federal Magistrate if he could submit further particulars. In fact, in support of his application for leave to appeal he has produced, evidently with the help of another person, an affidavit and some written submissions that are intelligible. In their totality these documents suggest that, if he had been given prior notice that on his first appearance before the Federal Magistrate his case was liable to be dismissed at an immediate show cause hearing, there were things that he might have said that might at least have indicated that he had an arguable case which should have been considered at a full hearing. This case stands in contrast to those in which formulaic submissions are put forward, having no apparent relevance to the matter before the court. 10 I can well understand the course that the Federal Magistrate took, faced as she no doubt was, with a very large number of applications to review decisions of the Tribunal and the need to dispose of them all fairly and efficiently. I am nevertheless uneasy about what happened in this particular case. The applicant claims that it was, in effect, unfair to him, and I am persuaded that in the particular circumstances he may be right. 11 Ms Burchell of counsel, in an admirably clear and concise submission on behalf of the Minister, acknowledged that that the applicant may have been taken by surprise at the first hearing before the Federal Magistrate. She submitted, however, that if one looks at the whole of the facts of the case, as the Federal Magistrate did, there was nothing useful that the applicant could have said, even if he had been given an opportunity to do so. 12 Ms Burchell also submitted that the two established principles upon which leave to appeal is normally granted or refused in this Court pointed against the grant of leave: see Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. The Full Court (Sheppard, Burchett and Heerey JJ) in that case considered, however, that the applicable test for the grant of leave should not be exhaustively applied in all cases, and that the Court retained an 'unfettered discretion' as conferred on it by s 24(1A) of the Federal Court of Australia Act 1976 (Cth): see at 399. The Full Court observed (at 399-400) that, subject to the consideration that the legislature has evinced a policy preference against the bringing of interlocutory appeals except by the grant of leave, 'there will continue to be cases raising special considerations, and the court should not regard its hands as tied'. In all cases leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: see Décor Corporation at 400; Eltran Pty Limited & Ors v Westpac Banking Corporation & Ors (1988) 32 FCR 195 at 202 (Spender J). My concerns about the potential unfairness, as a practical matter, of what occurred here are such that I consider that the appropriate course is to grant leave to appeal. There should, however, be no delay. Subject to hearing from the parties, I propose to have the matter listed for hearing at an early date. 14 I should also add that if those advising the Minister have in contemplation the possible operation of r 44.12 at the first court date, it would seem prudent to give a prior warning to the applicant. The contrary view is of course that, having commenced a case in the Federal Magistrates Court, an applicant should be taken to know what the procedural requirements might be. Since, however, r 44.11 does not mandate the immediate application of r 44.12 at the first court date but indeed contemplates the possibility of the provision of particulars (r 44.11(g)) and a separate show cause hearing at a future date (r 44.11(b)), it seems to me that to give such warning --- even if relatively informally (as in a letter) --- is not a burdensome task for the Minister to undertake and may well be desirable. 15 For these reasons I would allow the application for leave to appeal. Costs will be reserved.

show cause hearing federal magistrates court rules part 44 immediate show cause hearing at first court date without prior warning given to applicant leave to appeal granted migration

Subsequently he was deemed to be the holder of a Class BF transitional (permanent) visa, apparently because of legislature changes. In May 2003 Mr Tapel was convicted in the District Court of New South Wales on three counts of sexual intercourse without consent and sentenced to three years imprisonment on each of the first two counts and four years on the third count. 2 On 30 April 2007 a notice of intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) was sent to Mr Tapel at the Long Bay Correctional Complex. The letter erroneously referred to Mr Tapel as being the holder of a "Visa Subclass (100) Spouse granted to you on 12/08/1994". It advised that if the Minister or his delegate reasonably suspected that Mr Tapel did not pass the character test he had power to cancel Mr Tapel's visa but pointed out that the decision maker has a discretion not to exercise that power. The letter noted that Direction No 21 is binding on a decision maker who is a delegate of the Minister but not on the Minister personally. The letter invited Mr Tapel to comment on whether he passed the character test in s 501 and to provide any information that he felt the decision maker should take into account in deciding whether to cancel his visa. The letter required Mr Tapel to provide a response by 6 June 2007. Subsequently the time was extended, in a number of steps, to 9 July 2007 although Mr Tapel did not use the full extension but faxed his response to the Department on 28 June 2007. 4 On 15 August 2007 a letter was sent from the Department to Mr Tapel correcting the reference to Mr Tapel's visa as a Spouse visa. The letter correctly stated that he was the holder of a transitional (permanent) visa and said that it was this visa to which the intention to consider cancellation related. 5 The Department prepared a detailed paper discussing the issues relevant to the Minister's consideration of whether to cancel Mr Tapel's visa. The copy of the issues paper in the appeal book is undated however included in its annexures is a file note recording a Case Management Interview Mr Tapel had with two Departmental officers on 6 August 2007. Presumably the paper was provided to the Minister sometime after that date. 6 In any event, on 11 November 2007 the Minister signed a visa cancellation decision to which was appended a statement of the Minister's reasons. In his reasons the Minister set out the factors that weighed in favour of cancellation and those against it. Those in favour of cancellation were the protection of the Australian community and its expectations. Relevant to these factors were the seriousness of Mr Tapel's conduct and the need to deter others from committing similar crimes. Factors against cancellation included favourable prospects for Mr Tapel's rehabilitation, the interests of his four children and the impact of deportation to the Philippines on Mr Tapel himself. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr TAPEL's class BF transitional (permanent) visa under s 501(2). 7 The applicant signed an acknowledgment of receipt of the Notice of visa cancellation on 21 November 2007. That the respondent violated s 494B of the Migration Act 1958 and therefore exceeded his authority. 2. The Respondent denied the applicant procedural fairness in making the decision to cancel the applicant's visa. That the Respondent offended the integrity of the Ch III court. That the Respondent took into account a consideration that was internally inconsistent and/or took into account an irrelevant consideration and as such exceeded jurisdiction. 5. That the respondent failed to take into account a relevant consideration. I shall discuss these grounds in sequence. This section does not itself impose an obligation on the Minister to give a document, in this case presumably written notice, to a person. 10 The Migration Act does not impose any express obligation on the Minister to give written notice of an intention to cancel a visa although in this case the Minister did so. In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 at 423, French J held that there is an implied obligation to give prior notice of the Minister's intention to cancel a visa under s 501. As his Honour observed, the power to cancel a visa cannot be exercised unless the visa holder "fails to satisfy the Minister that the person passes the character test". Some process of notification is therefore contemplated even thought [sic] the Act does not set it out. Indeed the regulations seem to assume as much. The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. 11 The notice of intention dated 30 April 2007 was sent to the applicant at the Long Bay Correctional Complex, PO Box 13 Anzac Parade, Matraville, NSW 2036 . The applicant submits that "at all times relevant to the cancellation ... his correct address for service was Locked (Mail) Bag 20, MATRAVILLE NSW 2036 ". He submits that the Minister "was informed of this address as early as July 27 th 2006". The applicant does not dispute that he actually received the notice and that he responded to it. He signed an acknowledgment of its receipt on 7 May 2007 and he sent a two page submission to the Department on 28 June 2007. At the hearing he was not able to point to any prejudice that resulted from the document being sent to the above address. In my view the applicant was given reasonable notice of the intention to consider cancellation of his visa. 12 The position with regard to the notice of cancellation of the applicant's visa is different. Section s 501G(1) requires the Minister to give a person written notice of the decision to cancel a visa and sets out the information that must be included in such a notice. Section 501G(3) provides that the notice is to be given in "the prescribed manner". Regulation 2.55 of the Migration Regulations 1994 (Cth) prescribes several methods for giving the notice to the person whose visa has been cancelled. One method is delivery by prepaid post to the person's last known residential address, business address or post box address known to the Minister. The address to which the notice of cancellation dated 11 November 2007 was sent was Long Bay Complex, Locked Bag 21, Matraville NSW 2036 . The applicant signed an acknowledgement of receipt of the notice on 21 November 2007. 13 The applicant submits that the fact that he still received the Minister's correspondence is irrelevant. In support he cited Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1292 and Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 311. The applicant submitted that he was not notified in accordance with the Migration Act and consequently a precondition of the exercise of the Minister's power to cancel his visa had not been satisfied. The Applicant's address was Long Bay Correctional Centre (or Complex) in Matraville. That is where the Department's letters were sent. Apparently there was more than one post office box to which mail for the Centre could be directed; but the choice of one rather than the other had no effect on whether the correspondence reached the Applicant. 15 Ultimately, however, as Mr Kennett submitted, the complete answer to the applicant's submission in [13] above is that s 501G(4) expressly provides that a failure to comply with the notification procedure does not affect the validity of the cancellation decision. Assuming for present purposes there was an error, it was not a jurisdictional error. In support of this submission he cited Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807. The facts in Sales bear some similarity in that Mr Sales was also in custody when he was notified of the intention to consider cancellation of his visa and given 14 days within which to respond. The seven page letter containing the notice of intention to consider cancellation also resembles that received by the applicant. On page 3 of the letter the applicant was advised of the considerations that would be taken into account if the decision was made by a delegate or if made by a Minister. It was not clear to the applicant who would make the decision, but in either case direction number 21 was said to be relevant. If the decision were to be made by a delegate it was mandatory and if it were to be made by the Minister it would be a direction to which the Minister could have regard. Thus direction number 21 was a document which was highly relevant to any applicant and this applicant to consider in relation to the position that such a person and this person would face under s 501. The letter included a number of other documents including extracts from the Act, the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. Page 7 of the letter sets out in detail the documents which the applicant recognised receiving. The letter urged the applicant to read fully and carefully the contents of the Minister's direction. It urged him to address each and every topic that he felt applied to him or that was relevant to his circumstances and to provide any other information which he thought was relevant. The direction is a comprehensive and careful document of 11 pages. It makes clear in the preamble that the exercise of the discretion whether or not to cancel the visas will take into account a wide range of factors including the protection and the expectations of the Australian community, the nature of the crimes committed, the non-citizen's links to Australia and any relevant international law obligations of Australia. The preamble went on to say that the purpose of refusing or cancelling a visa under s 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or remain in the community. The task to prepare material for a consideration of such matters, objectively understood, is wide-reaching and significant. 17 His Honour held that a 14 day period was "plainly inadequate" for Mr Sales to address the task before him. His Honour focused not only on the complexity of the task but also on the fact that Mr Sales was in custody; that he had spent a significant part of his youth in an institution; that he had suffered from heroin and alcohol addiction; that he was not well educated and that his own and his family's resources were not extensive. 18 His Honour held that Mr Sales was not accorded procedural fairness. In reaching this conclusion Allsop J did not suggest that the Minister had any obligation in relation to the difficulties facing Mr Sales other than to allow him adequate time. 19 The applicant here does not complain that the time allowed for him to respond (approximately two months) was inadequate. His complaint seems to be that the Minister did nothing to address the difficulties that he was facing because he was in custody and without professional advice. Whether procedural fairness has been accorded is always a matter of degree. Despite the similarities between the position of Mr Sales and the applicant, in my view the facts here are distinguishable. The time allowed to the applicant was not inadequate, and, in the circumstances, it is my opinion that there was not a breach of the obligation to grant procedural fairness. The reference to a Chapter III court is misplaced. The applicant was tried, convicted and sentenced in the District Court of New South Wales which is not a federal court and there is no suggestion that any federal offence was involved. There is ample authority that in cancelling the applicant's visa, the Minister is not imposing any further punishment for the applicant's crimes or exercising judicial power; see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 ; (2004) 139 FCR 292 at 306; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [44] ; Ex parte Walsh and Johnson; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36 at 95-96. 21 In his submissions in reply the applicant denied that he relied on any argument that s 501 is punitive. He submitted that in purporting to protect the Australian community "from past conduct already dealt with by way of a finding of guilt and sentence of imprisonment" the Minister "offends" the integrity of the courts. According to the applicant a sentence imposed by the court "is an exhaustive statement by the court as to the length of time the community needs protection from the applicant's criminal conduct". This submission must be rejected. It runs counter to the scheme of the Act as found in s 501 and following, in particular s 501(6) , which sets out the various circumstances in which a non-citizen fails the character test. Those circumstances place clear emphasis on criminal conduct (including past criminal conduct) and other behaviour which may pose a threat to the community. It follows from what we have said that s 501(2) of the Migration Act , on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen's visa will have in protecting the Australian community. Similarly, s 501(2) is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country. 23 I accept the respondent's submission that for the Minister to make a decision in the public interest as to whether a particular non-citizen should be allowed to remain in Australia does not involve any invasion of the proper sphere of the criminal courts. He submitted that this is irrational and illogical. This submission is misconceived. The applicant's past conduct is relevant to a consideration of the protection of the Australian community from possible future conduct of the applicant. There is nothing illogical about such a consideration. 25 The applicant also submitted the Minister did not take into account the effect that cancelling his visa would have on him personally. This submission must be rejected. Both the issues paper prepared for the Minister by the Department and the Minister's reasons for his decision address this issue. I have noted Mr TAPEL's submission claiming that if his crime and incarceration become publicly known in his home area, he will be ostracised by the local community and that he fears for his safety there. I have noted that Mr TAPEL has lived in Australia since 1994 and has four Australian citizen children with whom he may be able to resume contact in the future, depending on the outcome of his intended legal proceedings in the Family Court. The information relevant to the 'other considerations' weighs against cancelling Mr TAPEL's visa. I gave this consideration moderate weight. 26 For the above reasons I am satisfied that none of the grounds of review has been made out. 27 After the conclusion of the hearing, on 5 June 2008, the Court received a letter from Sister Francis Mansour, who appeared at the hearing as a friend of the Court to assist the applicant with his documents. The letter requested that I take into account a matter which was not raised at the hearing and "which was not considered by the Minister in respect to the hardship suffered as a result of visa cancellation", namely the loss of contact with his four children the applicant would face if returned to the Philippines. As mentioned at [6] above, the Minister did take this matter into account, noting that "there are four children under the age of 18 years towards whom Mr TAPEL has a relationship which is parental in nature and whose best interests may accordingly be affected by his permanent absence from Australia...". The Minister found that it was in the best interests of the children that the applicant's visa not be cancelled, and gave this consideration "substantial weight". In these circumstances, there is no more to be said on this point. 28 On 6 June 2008 the respondent filed an affidavit in support of an application for costs fixed in the amount of $8,530 pursuant to O 62 r 4(2)(c) of the Federal Court Rules and Practice Note 27. No such application was made at the hearing. The respondent's written submissions seek only that "the Application should be dismissed with costs". Given that the application for fixed costs was made after the hearing, there has been no opportunity for the applicant to make submissions either on the application for fixed costs or in relation to the amount the respondent seeks. In the circumstances, I do not propose to make an order for costs in a fixed amount. 29 The application must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

application for an order of review of minister's decision to cancel visa on character grounds whether address on notice of intention to consider cancellation of visa and notice of cancellation constitutes a breach of s 494b of migration act 1958 (cth) whether minister's failure to address the fact that applicant was in custody and without professional advice constitutes a denial of procedural fairness whether s 501 of migration act 1958 (cth) offends the integrity of the courts whether minister took into account an irrelevant consideration migration

The action is brought by an investor, P Dawson Nominees Pty Ltd. It sues on its own behalf and on behalf of all investors who (1) during a defined period acquired an interest in securities in, or issued by, one of the respondents; (2) suffered loss and damage by reason of the conduct alleged against the respondents; and (3) had "as at the commencement of the [the] proceeding entered a litigation funding agreement with International Litigation Funding Partners, Inc. (ILF). " The question in issue is whether the last criterion is permissible. 2 Multiplex is a public company whose shares are listed on the Australian Stock Exchange (ASX). MFM, a related company, is the responsible entity (see Part 5C of the Corporations Act 2001 (Cth)) of both the Multiplex Property Trust, a managed investment scheme established on 19 September 2003 and the Multiplex SITES Trust established on 12 November 2004. Ordinary shares in Multiplex give the holder an interest in Multiplex group stapled securities --- that is an ordinary share in Multiplex is stapled to an ordinary unit in the Multiplex Property Trust. Stapled securities are traded on the ASX. Investors can also acquire an interest in Multiplex Step-up Income Distributing Trust Issued Exchangeable Securities (Multiplex SITES). Multiplex SITES are also traded on the ASX. 3 Multiplex is a substantial construction company with operations in several countries. In 2000 a Multiplex subsidiary, Multiplex Constructions (UK) Ltd, entered into a contract to design and build the Wembley Stadium at Wembley in the United Kingdom. It is common knowledge that the stadium was not completed within time and the final cost of construction well exceeded the budgeted cost. This had a substantial adverse effect on profits and consequently on the price of Multiplex shares, stapled securities and Multiplex SITES. 4 In this action P Dawson Nominees seeks to recover the losses it has suffered on its investment. It relies on several causes of action, of which I need mention only two. First, P Dawson Nominees contends that by about 2 August 2004 Multiplex knew, or reasonably would have known, that it was likely (or at least there was a material risk) that the Wembley Stadium project was well behind schedule. It alleges that the information about the project and its affect on profits was material information which (contrary to the listing rules of the ASX) the Multiplex group failed to disclose to the ASX. A failure to comply with the disclosure requirements of the listing rules is a breach of s 674 of the Corporations Act permitting the court under s 1317HA to order that damages suffered by any person be made good. 5 Second, P Dawson Nominees alleges that the Multiplex group misrepresented the situation regarding the Wembley Stadium project in several reports to the ASX and in other reports to the public. The reporting history is as follows. On 18 August 2004 Multiplex group announced that work on the Wembley Stadium project continued to progress at a rate which would permit completion of the project ahead of schedule and that a contractual dispute with the structural steelwork subcontractor would not affect the construction program or impact on Multiplex group earnings. In its Annual Report for 2004 it was stated that nothing had arisen since the end of the previous financial period that was likely to effect significantly the Multiplex group operations. On 8 November 2004 Multiplex group announced that it had received a claim for approximately ₤20.9 million from the structural steelwork subcontractor of which ₤14.9 million related to costs contained in the contract and only approximately ₤6 million had not been provided for. On 24 February 2005 Multiplex group announced that the Wembley Stadium project was still on schedule; the Multiplex group board believed that the result for the 2005 financial year remained broadly in line to achieve a net profit after tax and before stapling eliminations of $235.3 million; aside from matters set out in the financial statements, there had not arisen any item, transaction or event of a material or unusual nature likely in the opinion of the directors to affect significantly the operations of the consolidated entity, the results of those operations or the state of affairs of the Multiplex group in future financial periods. On 28 February 2005 Multiplex group announced that the Wembley Stadium project had not impacted on full year 2005 forecasts and that full year 2005 aggregated profits (before stapled eliminations) guidance of $235.3 million was maintained. 6 It is alleged that the true position was much worse, as the Multiplex group acknowledged in later reports. For example, on 27 May 2005 Multiplex group announced that it had received an interim report that indicated that the margin position of the Wembley Stadium project may have deteriorated significantly; the possible outcomes from the Wembley Stadium project included a loss significantly greater than that which would be covered by an indemnity for $50 million provided by the Roberts family (a significant shareholder) and that it had requested a trading halt from ASX. On 30 May 2005 Multiplex group announced that it had revised its forecast aggregated group profit after tax before stapling eliminations for the 2005 financial year from $235 million to $170 million; Multiplex group anticipated the loss in relation to the Wembley Stadium project to be $109 million (excluding the Roberts family indemnity) and the revision included an after tax provision for a $41 million loss on the Wembley Stadium project. 7 P Dawson Nominees contends that by reason of the reports made on and before 28 February 2005 Multiplex group made the following misleading representations: (1) The Wembley Stadium project had not substantially exceeded its costs as those costs were then budgeted; (2) The Wembley Stadium project would not substantially exceed its then budgeted costs; (3) Multiplex group was not aware and ought reasonably not to have been aware of any matters which made it likely that the Wembley Stadium project would substantially exceed its then budgeted costs; (4) Multiplex group was not aware and ought reasonably not to have been aware of any matters which meant there was a material risk that the Wembley Stadium project would substantially exceed its budgeted costs; (5) The Wembley Stadium project was not significantly behind the then construction schedule for the project; (6) The Wembley Stadium project would not fall significantly behind the then construction schedule for the project; and (7) Multiplex group was not aware and ought not to have been aware of any matters which made it likely that the Wembley Stadium project would fall significantly behind the construction schedule for the project. 8 If the representations were made and are found to be misleading or deceptive there will be a contravention of several statutory provisions, including s 1041H(1) of the Corporations Act , s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) and s 9 of the Fair Trading Act 1999 (Vic). Once again, damages could be awarded to make good any loss suffered in consequence of the contravening conduct. 9 P Dawson Nominees and the group members it represents (more than 40) purchased their respective interests in Multiplex securities between 2 August 2004 and 30 May 2005. They claim to have suffered loss as a result of the alleged failure to comply with the disclosure requirements and the allegedly misleading or deceptive conduct. The statement of claim asserts that the securities were acquired in a regulated market in which misleading or deceptive statements had been made as a result of which the market price for the securities was substantially greater than their true value and in any event greater than the market price that would have prevailed but for the contraventions. 10 It seems the way the case will be put is based on the hypothesis (in some quarters an article of faith) that had the Corporations Act and ASX listing rules been complied with the market in Multiplex securities would have been open and efficient and the price of the securities would be determined on the basis that all material information regarding the company was publicly available. The consequence of this hypothesis is the premise that the market price of the securities would have been negatively affected if there had been proper and not misleading disclosure about the Wembley Stadium project. 11 It may also be argued that there is a rebuttable presumption of reliance (if it is necessary to establish reliance) on the existence of an open and efficient market for Multiplex securities. In the United States this is referred to as the fraud-on-the-market theory. In Basic Inc v Levinson 485 US 224 (1988) the Supreme Court of the United States held that securities class action plaintiffs are entitled to a presumption of reliance that the market for the securities in question was efficient and that the plaintiffs traded in reliance on the integrity of the market price for those securities. The fraud-on-the-market presumption is rebuttable. The defendant bears the burden of establishing that the presumption should not apply. There are usually three ways a defendant can rebut the presumption. They are: (1) that the non-disclosures did not affect the market price; (2) that the plaintiffs would have purchased a stock at the same price had they known the information that was not disclosed; and (3) that the plaintiffs actually knew the information that was not disclosed to the market: Fine v American Solar King Corporation 919 F 2d 290, 299 (5th cir, 1990). 12 The respondents contend that this proceeding cannot continue as a class action. They point to the third criterion for group membership, namely that an investor must have entered into a funding agreement with ILF, and argue that this criterion is "[an] 'opt-in' requirement ... [that is] inconsistent with the terms and policy of [the representative proceeding provisions]", that is Part IVA of the Federal Court of Australia Act 1976 (Cth), comprising ss 33A to 33ZJ . On this basis they ask for an order under s 33N that the proceeding no longer continue as a representative proceeding. 13 To place the controversy in its context it is necessary briefly to describe the characteristics of a group proceeding for which Part IVA provides. Class actions have their origins in chancery. A common law action involved only two parties, the plaintiff and the defendant. Proceedings in equity often affected a number of persons. The problem with such proceedings was the rule that only a party to an action was bound by the judgment. If the parties were numerous joining everyone was often impracticable. So chancery developed three broad exceptions to the principle that all interested persons should be made parties. The first was representation by rule of law: Cockburn v Thompson (1809) 16 Ves 321; (1809) 33 ER 1005. An executor or administrator represented the legatee, a trustee in bankruptcy represented the creditors, the Attorney-General represented the public, and so on. The second exception was where there was a right asserted against a large and indefinite number of persons with their limits unascertainable. In Adair v The New River Company (1805) 11 Ves 429, 445; (1805) 32 ER 1153, 1159 Lord Eldon said that in such a case it was sufficient to join, "so many, that it can justly be said, they will fairly and honesty try the legal right between themselves, all other persons interested, and the Plaintiff. " The third exception arose out of claims by or against definite persons who were large in number and it was impracticable to bring them all to court. For that kind of case the rule was developed that a party could represent the group: Taylor v Salmon (1838) 4 My & Cr 134; Adair v New River (1805) 11 Ves 429, 444; (1805) 32 ER 1153; Meax v Maltby (1818) 2 Sw 277; (1818) 36 ER 621. In the only major treatise on the topic, the author explained that "where the parties are so numerous, as to render it inconvenient or impracticable that they should be parties to the record, if they also have one common interest, a few may sue [or be sued] on behalf of themselves, and of all ..." Calvert on Parties 2nd ed (1847). 14 Modern class actions follow the same goals, permitting litigation of a suit involving common questions where there are too many plaintiffs for proper joinder. Section 33C(1) sets out the three conditions that must be satisfied for a class action to commence. They are: (1) numerosity ("seven or more persons [must] have claims against the same person"); (2) connectivity ("the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances"); and (3) commonality ("the claims of all those persons give rise to a substantial common issue of law or fact"). 15 An interesting feature of the Australian legislation is that it is not necessary for the represented group to include every person who has a claim against the defendant that arises out of the same or related circumstances. This seems to be a surprising omission. The Law Reform Commission Report No. 46 into Grouped Proceedings in the Federal Court recommended that if a class action did not include all persons with related claims the court should have power to stay the action until the position was regularised. In its draft Bill the LRC included a provision (cl 14) to that effect. Parliament did not accept the LRC recommendation. Instead, s 33C(1) provides that if each of the three conditions is satisfied a proceeding may be commenced by one or more group members "as representing some or all of them". Moreover, there is nothing in Part IVA that restricts the characteristics by reference to which persons with related claims may be omitted from the group. At least there is nothing express in that regard. 16 A judgment given in a representative proceeding binds all group members, save those who affirmatively elect to be excluded: s 33ZB. To this end, s 33J provides that a group member may "opt out" of a representative proceeding before the date fixed by the court for that purpose. 17 On this aspect Parliament had to choose between (in broad terms) an "opt out" model (favoured by most jurisdictions that permit class actions) and an "opt in" model. The "opt in" model recognises the liberty of an individual to choose whether to bring an action, and avoids roping in a person who may not want to litigate at all. Opt out models are sometimes favoured because they can ensure that unsophisticated claimants as well as those who through timidity or ignorance of legal proceedings will not take the necessary step to be included in the group may still have the benefit of the litigation. However, the model selected by Parliament for the Federal Court does not have this effect because it allows a subset of all possible plaintiffs to constitute a group and there is no express restriction on how this subset is defined. 18 Part IVA does not have a procedure by which a class action has to be certified by the court before it can proceed. In most jurisdictions there is a certification procedure. In the Federal Court class actions can proceed provided they meet the conditions set out in s 33C. The LRC said that there was "no value in imposing an additional costly procedure, with a strong risk of appeals involving further delay and expense, which will not achieve the aims of protecting parties or ensuring efficiency": LRC Report at 63-64. Experience of class actions suggests that the absence of a certification process is itself the cause of numerous interlocutory applications with resultant expense and delay. 19 Although the LRC rejected certification it acknowledged that there had to be some mechanism to ensure that the class action procedure was not abused or used inappropriately or inefficiently. Several provisions were introduced for that purpose, with s 33N being one of them. 20 Section 33N is an important section. First the court must decide whether one of the conditions in paras (1)(a) to (d) has been satisfied. If it has, then, and only then, is the court entitled to consider whether, because of the existence of that condition, it is in the interests of justice to make a discontinuance order. In Bright v Femcare Ltd (2002) 195 ALR 574, 588, a decision of the Full Court of the Federal Court, Lindgren J said that the first step "raise(s) practical questions which require that the Part IVA proceeding be compared with other proceedings that are available to the applicant and group members as a means of resolving their claims. " In the same case I said, in a somewhat similar vein, that to exercise the power to make an order under s 33N(1) one of the conditions in paras (a) to (d) had to be satisfied and that was to be decided upon an objective assessment of the facts. 22 As regards the second step I went on to say that the question whether or not it was in the interests of justice to make a discontinuance order had to be weighed against the public interest in the administration of justice that favours class actions. I described the principal objectives of the class action procedure to be to: (1) promote the efficient use of court time and the parties' resources by eliminating the need to separately try the same issue; (2) provide a remedy in favour of persons who may not have the funds to bring a separate action or who may not bring an action because the cost of litigation is disproportionate to the value of the claim; and (3) protect defendants from multiple suits and the risk of inconsistent findings. 23 It is appropriate in the present context to add a word or two about those objectives. On the second reading of the Federal Court of Australia Amendment Bill 1991 which introduced Part IVA the Attorney-General said that the class action procedure was needed for two purposes. "The first is to provide a real remedy where, although many people are affected and the total amount at issue is significant, each person's loss is small and not economically viable to recover in individual actions ... The second purpose ... is to deal efficiently with the situation where the damages sought by each claimant are large enough to justify individual actions and a large number of persons wish to sue the respondent. The new procedure will mean that groups of persons, whether they be shareholders or investors, or people pursuing consumer claims, will be able to obtain redress and do so more cheaply and efficiently than would be the case with individual actions. The reason for permitting plaintiffs to pool claims that would be uneconomical to litigate individually (the so-called small claimant class) is self-evident. It affords plaintiffs a remedy where absent the possibility of a class action they would have none. The classic statement of this theory is to be found in H Kalven Jr and M Rosenfield "The Contemporary Function of the Class Suit", 8 University of Chicago Law Review 684 (1940-1941). 25 Large claimant class actions provide different benefits. The benefits are economies of scale (time, effort and expense). Perhaps the most significant benefit for members of this class is the reduction of the costs of litigation, in particular the legal costs, by spreading the burden among group members. In Deposit Guaranty National Bank Jackson Mississippi v Roper 445 US 326 (1980) Burger CJ, in delivering the opinion of the Supreme Court, noted (at footnote 9) that: "[a] significant benefit to claimants who choose to litigate their individual claims in a class action context is the prospect of reducing their costs of litigation, particularly attorney's fees, by allocating such costs among all members of the class who benefit from any recovery". See also United States Parole Commission v Geraghty 445 US 388, 402-403 (1980). 26 There are circumstances in which the prosecution of a class action will not produce the benefits for which it was designed. On occasions, for example, the class action is used opportunistically with persons other than the class members hoping to recover the bulk of the benefits. In addition, several commentators and judges have referred to the "strike suit" or the blackmail aspect of a class action: see eg The Hon J B Weinstein " Some Reflections on the 'Abusiveness' of Class Actions" 58 Federal Rules Decisions 299 (1973). Professor Miller of Harvard University, one of the authors of rule 23 of the Federal Court Rules of Civil Procedure (US) which introduced class actions in the Federal Court, published a comment on the rule entitled "Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the 'Class Action Problem'" 92 Harvard Law Review 664 (1979) in which some of the problems are discussed. Professor Moller, a senior fellow at the Cato Institute, described the class action as a rent seeking action: M Moller "The Rule of Law Problem: Unconstitutional Class Actions and Options for Reform" 28 Harv Journal of Law & Pub. Policy 855 (2005). Whether these undesirable aspects of a class action can be avoided by safety provisions such as s 33N remains to be seen. 27 Returning to the action at bar, it has accurately been described by the respondents as "factually intense and highly complex". At the heart of the case are complex factual questions relating to the rate of progress of the construction of the Wembley Stadium at various points of time, and the reasonableness of the representations made by the Multiplex group in the light of what was known to their officers. As the respondents have pointed out, whether or not Multiplex had reasonable grounds for making the representations will involve a detailed appreciation of the true status of the Wembley Stadium project at the time of the representations in the light of the relevant parties' contractual rights and obligations. A similar comment may be made about the non-disclosure allegation. 28 It will come as no surprise to learn that this action will be very expensive to run. But just how much it will cost will likely shock most lay persons and some lawyers to boot. Each side has several lawyers, including multiple counsel, working on the case, some probably on a full-time basis. P Dawson Nominees' lawyers, Maurice Blackburn Cashman (MBC), initial estimate of the cost of running the action was in excess of $7.5 million (the actual estimate is confidential). Their current estimate may be much higher. The respondents' lawyers have made an estimate of their clients' costs for the purposes of a still extant motion for security for costs. They estimate the costs to the completion of discovery to be $24,137,672, of which $23,963,837 is for discovery. For the time being P Dawson Nominees does not seek general discovery and has asked for discovery of a limited class of documents. This has reduced the cost of discovery to $6,429,737, so it is claimed. 29 On any view, this is an action that few people could afford. It is certainly not an action P Dawson Nominees could run on its own. I suspect the same is true of most (if not all) members of the group it represents. 30 How then did this action begin? What happened was this. MBC have run several major shareholder class actions. They describe themselves as "the only legal firm in Australia with an established track record in shareholder class actions" (their emphasis). MBC investigates the potential of bringing more class actions. It seems they investigated whether it would be fruitful to bring a class action against Multiplex and decided that it would be. So, by advertisement and perhaps by word of mouth, they put together a group of investors willing to bring the action. The group comprises more than 40 investors. In a radio interview given by an MBC lawyer the group was described as ranging from small retail investors to large institutions. 31 Each member of the group has entered into a retainer agreement with MBC. It is a condition of the retainer agreement that the group member has entered into a funding agreement with ILF, a foreign company whose business includes providing legal funding to litigants in return for a share of the proceeds of the funded action. By the retainer agreement MBC was instructed to commence and prosecute the claim against Multiplex "as a Class Action, Group Action or Test Case as MBC considers appropriate. " No fees, costs or disbursements are payable by the group members. They are to be paid by ILF on the members' behalf. The group member is entitled to terminate the retainer on seven days' written notice. The retainer terminates automatically if, in the case of a class action, the group member opts out before the opt out date set by the court. The retainer also terminates automatically if the group member settles his or her claim against Multiplex otherwise than in a group settlement. In the event of termination MBC is still entitled to its costs from ILF. MBC promises not to recover from the group member any professional fees and disbursements that ILF refuses to pay. 32 Turning to the funding agreement, there are several provisions that should be mentioned. The first is a so-called "cooling off period" of 21 days during which the group member can withdraw from the agreement without any cost. Once the agreement is in operation the group member is only permitted to change his lawyer (MBC) "after consultation [with ILF]". The principal provision of the agreement is that by which ILF promises to pay all costs and disbursements reasonably incurred in prosecuting the action against Multiplex and any costs that may be ordered against the group member. In the event that it becomes necessary to do so, ILF also promises to put up any security for costs that may be ordered. For his part, the group member agrees that any sum received in satisfaction of his claim against Multiplex (whether by settlement or judgment) is to be deal with in the following order. First, in payment of the costs and disbursements of the action and any appeal. Second, in payment of a not insignificant percentage to ILF by way of a fee and an additional percentage if there is an appeal. Finally, the balance goes to the group member. 33 Provision is made for the termination of the funding agreement. The agreement will terminate if the group member settles his claim against Multiplex or opts out of the class action. In the former case, and in the latter if the group member recovers damages from Multiplex, the group member is still required to apply the amount received as if the agreement remained in force. 34 The advantage of the retainer and the funding agreements to each group member is obvious. If it were not for those agreements and the class action procedure, the action would probably not have gotten off the ground. Individually, most group members would not have the financial strength to bring their opponents to court. For those that do the potential benefits of bringing an action would be outweighed by the quantum of the costs. Mr Dawson, who with his wife controls P Dawson Nominees, said that his company could only litigate its claim against Multiplex because it is a class action in which his costs are covered. 35 It is the funding criterion for group membership that forms the basis of the present application. It will be recalled that one criterion that an investor must satisfy to be a group member is that he has "at the commencement of this proceeding, entered into a litigation funding agreement with [ILF]. " The criterion is attacked. The argument is that the criterion 'amounts to a requirement that group members take (or have taken) a positive step in order to "opt in" to the proceedings', a requirement which is said to be inconsistent with "the terms and policy of Part IVA. " The respondents also say that not only the impugned criterion but also the "contractual disincentives to termination of [the funding] agreement subvert the "opt out" process which is central to Part IVA [and] amounts to an abuse of the court's processes. " Finally it is contended that it is inimical to Part IVA to require a person who wishes to be a group member to enter into a funding agreement with a particular funder. For those reasons the respondents seek an order under s 33N(1) that the proceeding no longer continue as a representative proceeding. The trigger that is said to enliven the power to make such an order that "it is ... inappropriate that the claims be pursued by means of a representative proceeding. ": s 33N(1)(d). 36 Before dealing with the argument it is convenient to make some additional comments about class actions that will bear on the ultimate issue. The first comment takes me back to the Attorney-General's two purposes for class actions, namely (1) to allow small individually uneconomic claims to be brought and, (2) to allow large claims to be handled with greater efficiency. The Attorney-General did not say how those objectives would be achieved through the medium of class actions. He did not mean they would happen by some kind of magic. He certainly did not mean that a class action was a simpler and cheaper procedure than an action brought by a single plaintiff seeking to vindicate his individual rights. What the Attorney-General had in mind, and what the class action procedure around the world is designed to achieve, is that group members will combine to share the costs of the action. 37 The most obvious and direct form of cost sharing is for group members to put up their own cash in sufficient quantity to cover the likely costs. But the costs need not be obtained by direct contribution. Contingency fee agreements are no longer unlawful in most jurisdictions. Under this type of arrangement a class action can be funded by a lawyer in exchange for a promise from group members to take his fees out of the proceeds, perhaps at a higher than usual rate. The financial incentive for lawyers to act on a contingency fee basis has been described as 'a natural outgrowth of the increasing reliance on the "private attorney-general" for the vindication of legal rights': Deposit Guaranty National Bank Jackson Mississippi v Roper 445 US 326, 338 (1980). 38 Group members can also purchase the funding they need to bring an action. That is precisely what the group members in this case have done under their agreements with ILF. The funding agreement is not illegal for being contrary to public policy. Nor is it an abuse of process to prosecute an action in which the plaintiffs receive their funding under this type of funding agreement: Campbells Cash & Carry v Fostif Pty Ltd [2006] HCA 41 ; (2006) 80 ALJR 1441. 39 The second additional comment is a reminder. The classic class action is where one or more members of an injured group without the consent of the other group members are able to sue on behalf of all of them. In Australia, however, Parliament has chosen not to adopt the classic model. Instead, the action may be brought on behalf of only some members of the injured group. 40 The third comment concerns the expressions "opt out" and "opt in". In ordinary usage these expressions mean to choose not to participate in something or to choose to participate in something. In the context of class actions, they refer to the right of a person to participate in or not participate in (as the case may be) an existing action. In one case (that of opting in) the person must take some step, usually notifying the court, to signify that he wishes to be bound by the action. In the other case (opting out) any person who falls within the description of the class will be bound by the action unless he takes some step (often notifying the court) that he does not wish to be treated as part of that class. See generally: Ontario Law Reform Commission, Report on Class Actions, Report No 48 (1982) p 467 ("The term 'opt in' has been employed to describe a procedure that is the converse of the kind discussed above ['opt out']. In other words, in a class suit employing an opt in procedure, a class member must 'opt in' to or join a class action shortly after certification in order to be bound by the judgment. "); Scottish Law Commission, Multi-Party Actions: Court Proceedings and Funding , Discussion Paper No 98 (1995) at [7.28] ("Under an option scheme the class member is automatically excluded from the class action and must take some prescribed step within a prescribed period before he will be bound by the result. "); Alberta Law Reform Institute, Class Actions , Final Report No 85 (2000), pp 92-99 ("... a person must take some prescribed step within a prescribed period before they become a member of the group and bound by the results of the litigation. "); Ireland Law Reform Commission, Consultation Paper on Multi-Party Litigation (Class Actions) , Consultation Paper No 25 (2003) at [4.69] ("An important issue is how membership in a class should be determined. There are two principle options to be considered: whether potential class members should be automatically included in the class but given an opportunity to opt-out of the proceedings or whether they should be required to take positive action to join the proceedings."). See also R Mulheron, The Class Action in Common Law Legal Systems --- A Comparative Perspective , (2004), pp 29-38. 41 Part IVA adopts this terminology. Section 33J confers on a "group member" the ability to "opt out" of a representative proceeding. A "group member" is a person on whose behalf a representative proceeding has been commenced: see the definition in s 33A. If the group member opts out he will not be bound by any judgment given in the proceeding: s 33ZB(2). 42 I have made the observation that "opt in" and "opt out" have a special meaning without overlooking the fact that on occasion the prior agreement to be a party to an action yet to be commenced has been described as an "opt in" procedure. 43 Prior to 1984 representative proceedings in Victoria (not class actions) were dealt with by rules of court, in particular O 16, rules 1 and 9 of the Rules of the Supreme Court 1916 and later 1958 (Vic). The rules were modelled on the English rules and can be traced back to the practice followed in the Chancery Court: Templeton v Leviathan Pty Ltd [1921] HCA 55 ; (1921) 30 CLR 34, 76. The rules were unsatisfactory in several respects. One problem was that the rules did not permit a representative action when the remedy the plaintiffs sought was in damages: Markt & Co Ltd v Knight Steamship Company Ltd [1910] 2 KB 1021. To get rid of the effect of this decision the Supreme Court Act 1958 (Vic) was amended by the introduction of s 62(1C). That section provided that: "Where provision is made by any Act, law or rule for two or more persons to be joined in one action as plaintiffs one or more ... may ... sue on behalf of or for the benefit of all persons who may be so joined. In Marino v Esanda Ltd [1986] VR 735 it was held that the only "Act, law or rule" by reference to which plaintiffs could be joined in one action was O 16, rule 1 and that required the right to relief to arise out of "the same ... series of transactions. " The effect of this decision was reversed by ss 34 and 35 of the Supreme Court Act which were introduced in 1986. I need not go into the detail of the new provisions but it is necessary to note the requirements that had to be complied with before a representative proceeding could be instituted. They were that: (1) three or more persons had the right to the same or substantially the same relief against the same person; (2) if separate proceedings were brought by each person in respect of that right, some common question or law or fact would arise in all the proceedings; and (3) all persons being represented in the proceeding consented in writing to being represented and must be named in the originating process. Incidentally, the sections contained no restriction on the arrangements that might be made between the persons who had agreed to commence the representative proceeding. 45 The new sections did not work very well. Many of the problems were identified in Zentahope Pty Ltd v Bellotti (unreported, Full Court, Supreme Court of Victoria, 2 March 1992). As a result the Victorian government decided to investigate the possibility of a complete overhaul. The Attorney-General's Law Reform Advisory Council commissioned V Morabito and J Epstein to produce a report on class actions. The report was delivered in August 1995. It was entitled "Class Actions in Victoria --- Time for a New Approach" . In that report ss 34 and 35 were referred to as having established "a class action" or "class suit" and the requirement that all persons represented must have consented in writing to being represented was described as an "opt in" procedure: See also V Morabito "Class Actions: The Right to Opt Out Under Part IVA of the Federal Court of Australia Act 1976 (Cth)" (1993-1994) MULR 615 , where the usage is repeated. This use of language was both loose and incorrect. First, representative proceedings are fundamentally different from modern class actions: Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382, 390-391; D Grave and K Adams, " Class Actions in Australia " (2005) [1.120-1.160]. Second, the Victorian provisions neither established a class action nor did they create an "opt in" procedure in the strict meaning of that expression. 46 I propose now to consider the following three questions: (1) Is the funding agreement requirement an illegitimate method of determining group membership? ; (2) In any event, does the existence of the funding agreement criterion bring the case within s 33N(1)(d)? ; (3) If it does should an order be made under s 33N(1) to discontinue the group proceeding? 47 With regard to question (1), the first thing to observe is that the description of group members is not as complex as appears in the statement of claim. In reality the group members simply comprises a number of individuals. Section 33H provides that the application or a document filed in support of the application must describe or identify the group members. Here they could have been identified by name. Instead they were identified by the factors that brought them together. 48 The second thing to observe is that the only persons excluded from the group are free riders, that is persons who make no direct or indirect contribution toward the costs of the action. In my opinion this is not inconsistent with Part IVA. When Parliament rejected the LRC's recommendation that the represented group should include all persons with common claims, it must have had in mind the likelihood that the represented group would be selected by criterion that bore no necessary relationship to the causes of action being pursued. There may be circumstances in which the factors that define a particular group are inconsistent with Part IVA in the sense that a group proceeding instituted to benefit only that group is not a proceeding which was contemplated by Part IVA. Putting that possibility (which on any view must be remote) to one side, a group that excludes free riders cannot be criticised. On the contrary, there are economically rational reasons to establish such a group. The most obvious is that it provides each potential group member with an incentive to agree to contribute. It also keeps the cost or the burden of purchasing the costs down for each individual. There are other advantages in keeping group numbers down. For one thing, it is probably easier to settle a smaller claim. For another, there is a greater prospect of obtaining a higher percentage of the amount claimed by way of compromise. Even respondents may benefit from the prospect of a smaller payout. Indeed, it is odd to hear a complaint from a defendant that there are too few plaintiffs. 49 I acknowledge that in the usual case a class action is brought without the express consent of all of group members. Section 33E contemplates that course, except in presently irrelevant circumstances. While consent to bring an action is not required by Part IVA , it is not forbidden. In effect the question raised by the respondents is whether a class action can be commenced consensually by a self selected group that has decided to exclude others who also have claims against the respondents. The basis for the selection seems to be irrelevant. I see no reason why that course should not be permitted. 50 For one thing, the prior agreement to commence a class action is not "opting into" the action. Even if it could be so described, all that Part IVA requires (assuming for the moment that it is not permissible to contract out of s 33J) is that a group member can opt out of a group proceeding. That is what these group members can do. In other words, if a group member decides that he does not want to be bound by any judgment in the action there is nothing preventing him from opting out at the appropriate time. 51 It is, in any event, by no means self evident that an agreement that prevents a group member from opting out would, or indeed should be, overridden by s 33J. That section is designed to protect the rights of persons who find themselves members of a group without their prior knowledge. They can leave the group. On the other hand, willing participants do not need the protection of s 33J. 52 However that may be, whether or not it is difficult for a group member to opt out is beside the point. For example, if a group member enters an agreement with a third party the effect of which is to make it financially unattractive to opt out, such an agreement is neither inconsistent with any provision in, nor is it contrary to the policy behind, Part IVA. Indeed, in my view Part IVA is indifferent to such an arrangement. In part this is because Part IVA is not concerned with the arrangements that bring group members together. 53 Strictly speaking, the foregoing discussion is not directly relevant to an application under s 33N. For that section to apply it is necessary in this case first to determine whether the impugned criterion leads to the conclusion "that it is inappropriate that the claims be pursued by means of a representative proceeding. " I see nothing "inappropriate" about the claims going ahead in such a proceeding. By and large, I regard this action as a very good example of litigation that is best suited for class action procedures. The counter-factual is either 40 or more separate actions where the plaintiff in each makes the same allegations as are made here, or, which is more probable, only one or two actions. The idea that it is better to have 40 or so large and complex actions each costing millions of dollars to run when all the issues can be litigated in one action can be dismissed out of hand. That is particularly so when it is clear that on any objective standard the benefit to the respondents of having at most a few actions instead of 40 or more is as great as it is for group members. Further, the notion that it is inappropriate for this action to proceed as a representative proceeding if the true alternative is that there will be no action to vindicate the rights of any group member is equally unacceptable. This last point is of more relevance in the second step of the investigation required by s 33N. 54 On that issue I do not see how it is possible to be satisfied that it would be in the interests of justice to order this proceeding not continue as a representative proceeding. Obtaining individual redress for the damages allegedly suffered by group members would involve expense totally disproportionate to the value of each individual's claim. In any event, if each group member is left to assert his rights alone there may be only one or two claimants with the financial capacity to prosecute their claim. Most will be forced to give up. That result is unfair for two reasons. It is unfair for those group members who will not be able to pursue any claim at all. It is also unfair because it would undermine the deterrent effect of the existence of sanctions for contraventions of the law regulating securities. 55 There is nothing, or nothing much, to weigh in the balance. According to the evidence, MBC is still seeking investors to bring claims against the respondents. If more investors come forward, application will be made to have them added to the group in this action or they may bring a separate representative proceeding. The respondents point to the unfairness of potentially being forced to defend many separate representative proceedings. I am not convinced that facing many representative actions is worse than facing multiple individual actions. What the respondents fear is in any event unlikely to eventuate. If more investors wish to sue the respondents and do not join this action but institute a separate action, it is likely the new action will be tried together with this action. In any case, if the respondents really prefer to be sued by all investors they may be able to secure that result by an application to amend the class under s 33ZF. In Darcy v Medtel Pty Limited [2002] FCA 925 Sackville J made an order under that section the practical effect of which was to enlarge the group membership. 56 I note in passing that by subpoena and notice to produce the respondents sought production from MBC of its communications with those investors from whom it was seeking instructions to bring proceedings. The purpose of gaining access to the documents was to discover what was likely to happen with those persons. MBC claimed that the documents were privileged. With the consent of the parties I have looked at the documents to rule on privilege. Having looked at them for that purpose I have decided that none need be produced. My decision is not based solely on a finding that the documents are privileged, although many of them are. (On this aspect I have proceeded on the basis that instructions provided by a person to a lawyer in the expectation or possibility of a solicitor and client relationship arising are privileged communications. ) I think the documents need not be made available because they do not add anything to the concession made by counsel for P Dawson Nominees that 'it is possible that [an] application will be made in these proceedings to join further persons ... and it is possible that other proceedings might be brought in respect of claims. ' The documents do little more than confirm this concession. 57 For the foregoing reasons I propose to dismiss the respondents' application unless Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 1483 ; (2005) 147 FCR 394 requires a different result. That was also a securities fraud class action. The shareholders alleged that the defendant, a publicly listed company, had made misleading representations about the company's profitability. There was also an allegation that the company had failed to disclose information that was material to its share price. The group on whose behalf the action had been commenced was described as: "persons for whom the solicitors for the Applicant have instructions to act at any particular time, who at some time during the period between 20 September 2002 and 16 May 2003 inclusive ... acquired an interest in shares in [the defendant] and who suffered loss and damage by or resulting from the conduct of [the defendant alleged in the statement of claim]. " The obligation to instruct the solicitors was referred to as the "MBC criterion". 58 The MBC criterion was not without its problems. It contemplated that group membership could change from day to day up to the day of judgment. This may not be permissible. It will be recalled that s 33H requires there to be a description or identification of the group members to whom the group proceeding relates. A group member is a member of a group of persons on whose behalf a representative proceeding has been commenced. The assumption seems to be that subject to s 33K (enacted to deal with causes of action accruing after the commencement of the proceeding) a person must be a group member at the time the group proceeding is commenced. If that is the proper construction of the relevant provision, group membership cannot be dependent upon some future event; nor could unborn children or future beneficiaries of a trust be group members. 59 The judge, Stone J, was of opinion that the MBC criterion was bad for different reasons. First, she thought it established an illegitimate opt in procedure. The fact that an opt out procedure would still be required is not to the point. The legislature has made a clear choice that was consistent with the recommendation of the ALRC on this issue. Whatever advantages, real or apparent, may flow from the ability to identify each member of the class at the outset, a decision to apply an opt in procedure can only be made by the legislature. This had "no support in principle or authority ... and [was] repugnant to the policy of the Act. On a literal reading of the MBC criterion (and there is no reason to give it anything other than a literal reading) a person could by retaining or terminating the retainer of MBC opt in or out of the process at will, both before and after the time fixed for giving an opt out notice. 62 The judge took a narrower view and held the criterion bad simply because it required a person to opt into the group proceeding. The problem with this approach is that the judge found the MBC criterion amounts to an illegitimate opt in procedure without really analysing why it was an opt in procedure at all. She did not, for example, discuss in what way it was inconsistent with Part IVA for members of a group to get together and bring a class action that excludes other potential group members. She did not say how her analysis was consistent with Parliament's rejection of the LRC's recommendation that class actions should be brought on behalf of all affected persons. 63 Putting those criticisms to one side there is, in any event, a more fundamental problem with Dorajay . I have pointed out that in Bright v Femcare the Full Court held that before a judge can consider whether it is in the interests of justice to make an order under s 33N(1) he or she must first determine whether at least one of the conditions in paras (1)(a) to (d) has been satisfied. As Lindgren J pointed out, that requires some comparison to be made between the class action and other proceedings that are available to the applicant and group members as a means of resolving their claims. Stone J did not undertake that comparison at all. Indeed, the judge made findings which, with the greatest of respect, would require that, were the criteria to be applied, they would not have been satisfied. The judge accepted, for example, that an order under s 33N(1) might: (1) "prevent some of the small claimants from pursuing their claims in this Court and, perhaps, at all"; and (2) "require each of the group members to institute separate proceedings or, more likely, to join together in a proceeding where each is a party to the action. This would likely result in greater costs to the parties and to the relevant courts in which the claims were brought. " But rather than deal with the first step she simply asked and answered the question: "Is [it] in the interests of justice that the proceeding no longer continue under Part IVA", as she put it "for one of the reasons set out in s 33N(1)(a) to (d)". That is not the approach mandated by Bright v Femcare . The judge should have, but did not, in the first instance determine whether the condition for the exercise of the power had been satisfied and, if it had, then go on to decide whether the power should be exercised. 64 I was also referred to Rod Investments (Vic) Pty Ltd v Clark [2005] VSC 449 which followed Dorajay . There the judge did no more than apply the reasoning in Dorajay . He did not support the result by a different analysis. 65 I need say nothing about the second basis for finding the MBC criterion bad for there is nothing like it here. In passing over that finding it is, I think, appropriate to make the observation that it has always been the practice of courts that follow the common law tradition that, special circumstances apart, regardless of their number, all plaintiffs in an action must be represented by one firm of solicitors and one set of counsel. The MBC criterion sought to impose a broader regime but one that was not all that far removed from the common law rule. 66 I decline to grant the relief sought in paragraph (1) of the respondents' motion filed on 1 March 2007. The respondents will be required to pay P Dawson Nominees' costs of that part of the motion. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

group proceeding criterion for membership all group members to retain a single litigation funder whether criterion inconsistent with the group proceeding provisions practice and procedure

The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 2 April 2004 affirming a decision of a delegate of the first respondent not to grant the appellant a protection visa. 2 The appellant did not appear at the hearing today. The first respondent filed an affidavit of service sworn on 20 July 2007 by Mihajla Mima Kocijan. This made it plain that the first respondent had forwarded the requisite documents to the address for service the appellant had provided. Further, my Chambers had also sent another notice of today's hearing by registered post to a second address provided by the appellant to the Court Registry. My associate has also tried unsuccessfully to telephone the appellant over the past week. There has been no communication from the appellant over recent weeks. Having regard to these matters, the procedural history of the matter as related below, the apparent impossibility of the appellant's case, and the appellant's failure to make any attempt to explain his absence from the hearing today, the Court proceeded with the hearing in the appellant's absence. 3 The first respondent's objection to competency is supported by an affidavit sworn on 21 June 2007 by the first respondent's solicitor, Ms Udara Asangi Jayasinghe. This affidavit details the extensive procedural history of the proceeding. 4 On 22 May 2003, the delegate refused to grant the appellant a protection visa. The Tribunal made a decision as long ago as 11 March 2004 to affirm the decision of the first respondent's delegate to refuse the appellant a protection visa. This decision was handed down on 2 April 2004. The Tribunal found that the appellant was an Indian citizen, who claimed to be a Hindu. He had applied for a protection visa on 20 March 2003, claiming to have a well-founded fear of persecution because of his dealings with an extremist communist group known as the Naxalites. The appellant claimed that he would be killed by the Naxalites if he returned to India. He also claimed to fear religious persecution. The Tribunal did not accept the appellant's claims in either regard. 5 On 3 May 2004, the appellant applied for an order of review in the Federal Magistrates Court. The Federal Magistrates Court dismissed this application on 29 April 2005 and the appellant was ordered to pay the first respondent's costs fixed in the amount of $6,300. The Tribunal's conclusion that the applicant's claims disclose no Convention nexus was open to it on the evidence before it and discloses no error of law, let alone jurisdictional error. I accept the respondent's submission that the applicant has demonstrated no proper basis for criticism of the process adopted by the Tribunal or its decision. Accordingly the application should be dismissed with costs. This appeal was heard on 1 August 2006. Jessup J dismissed the appeal and ordered that the appellant pay the first respondent's costs. His Honour gave detailed reasons for judgment. The appellant subsequently filed an application in the High Court for special leave to appeal. On 8 February 2007, Gummow and Heydon JJ dismissed this application. 7 In the same month, on 23 February 2007, the appellant applied again to the Federal Magistrates Court for review of the Tribunal's decision. The solicitors for the first respondent subsequently wrote to the appellant, advising that the appellant was, in their view, estopped from bringing the application. On 26 April 2007, the Federal Magistrates Court dismissed the appellant's review application and ordered that he pay the first respondent's costs in the sum of $500. The appellant filed a notice of appeal in this Court appealing from the judgment of the Federal Magistrates Court on 15 May 2007. This is the appeal that is the subject of the first respondent's notice of objection to competency. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction and is a denial of natural justice. Therefore, I was unable to attend the hearing set for 26 April 2007 and that I would need an adjournment. The Court is being very unfair by not granting me an adjournment. The police were of the belief that I supported the Naxalites in their political beliefs. I was in fear of the police because of this imputed political opinion. At the hearing today, Ms Jayasinghe, who appeared for the first respondent, also submitted that the appeal was incompetent because it was either the subject of res judicata or issue estoppel. Order 13.03A(c) permits the Court to dismiss an application if a party fails to appear at a hearing. The judgment is in the nature of an interlocutory judgment: see recently, for example, MZXMD v Minister for Immigration and Citizenship [2007] FCA 769 at [7] per Weinberg J and the cases there cited. Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the appellant requires leave to appeal. The appellant has not sought leave, notwithstanding that the defect is apparent from the first respondent's notice of objection to competency. I note too that leave must be sought within 21 days of the pronouncement of the interlocutory decision or an extension of time sought in which to seek such leave. The appeal is incompetent in the absence of a grant of leave. 11 Even if leave were sought, I would not be disposed to grant it. The present is a hopeless case. This is the second occasion in which the appellant has instituted proceedings for judicial review of the Tribunal's decision in March 2004. There is no suggestion that the appellant seeks to challenge the decision on any new ground. Res judicata can operate as a bar to a judicial review application in these circumstances: see, for example, MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [11] referring to Wong v Minster for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722 at [71]; and MZXEF v Minister for Immigration and Multicultural Affairs [2006] FCA 507 at [15] . Even if the circumstances did not give rise to res judicata, these second judicial review proceedings would attract an Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. Such an estoppel bars a party from raising any point which properly belonged to the subject of earlier litigation that the party, exercising reasonable diligence, might have brought forward at the time of the earlier proceeding. Furthermore, there is nothing to support the appellant's contention that the course taken by the Federal Magistrate on this occasion was so unfair or otherwise affected by error that it ought be set aside on appeal. 12 For these reasons, at the hearing of this matter on 23 July 2007, I ordered that the notice of appeal be struck out as incompetent. I also accepted the first respondent's submission that the appellant pay the first respondent's costs fixed in the sum of $1,500. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny J.

purported appeal from decision of federal magistrate dismissed for want of competency immigration

2 The search order was executed on 3 July 2006. Execution took place in Sydney and Canberra. In accordance with practice note 24 and the sample orders referred to in it, the search party included independent solicitors and computer experts. There was a separate solicitor and computer expert in attendance at the searches in each of Canberra and Sydney. 3 The evidence in support of the application included evidence of goods breaching copyright being sold to parties in Peru, and material, though not conclusive, linking the respondents to various parties who have been found to have breached the same species of copyright in the past, being copyright which is owned by the applicants. Notwithstanding this, Justice Allsop was satisfied at the necessary ex parte level that there was a strong prima facie case of what appeared to be sales of counterfeit goods; being the machines, their artwork and associated computer software. His Honour was also satisfied of the other requirements for the grant of a search order as provided in O 25B r 3 of the Federal Court Rules . 4 In his reasons, his Honour noted at [6] that an issue may be ventilated in due course as to the necessity for the search to be closely related to the accrued cause of action. However, his Honour thought that the better reading of O 25B was that the flexibility and amplitude of the order would be undermined if the search order was limited to the precise cause of action known. 5 His Honour also observed at [7] that it is not the practice that the terms of orders for search and seizure are limited to material directly related to the precise cause of action then known to an applicant. He said that "[s]uch a course would tend to make the utility of this procedure doubtful". 6 In those circumstances his Honour was prepared to make orders which were sought for the search of "Listed Things". These were defined in Order 5 of the orders of 30 June 2006. Order 5 is to be read with Schedule A which provides a lengthy definition of Listed Things, and includes "things which are, or appear to be, Infringing Aristocrat Game Materials" as defined in Order 5(s). 7 The definition "Infringing Aristocrat Game Materials" extends to any artwork, EPROM or software (or associated literary work) reproducing the whole or a substantial part of any Aristocrat Artwork, Aristocrat EPROM or Aristocrat Game Software made without the licence of the applicants. Order 9(b) permits the search party to search for and inspect the Listed Things and to make or obtain a copy, photograph or film of them. 8 On 5 July 2006, the orders were amended by Justice Rares. Those orders provided amongst other things for any application to set aside or vary the orders made by Justice Allsop to be filed and served by 10 July 2006. An application was filed seeking to set aside the orders but it was not pursued. However, on 12 July 2006, the orders of 30 June 2006 were further varied by Justice Lindgren. Separate regimes were established for hard copy documents and electronic material. 10 The solicitors who consented to the orders that were made on 7 September 2006 no longer appear for the respondents, new solicitors subsequently having replaced the previous firm. I do not propose to set out the orders in full but in my view the proper construction of those paragraphs is that a list was to be supplied to the independent solicitor and the applicants' solicitor, of all materials removed from the premises which the respondents claimed to be privileged or confidential (the "Disputed Seized Material"). All material other than the Disputed Seized Material was then to be made available for inspection by the applicants and their solicitors. 12 There is also an exception for "Disputed Items" but that category is not in issue in the present application. 13 Order 6 provided for the respondents to file and serve an affidavit setting out, in relation to the Disputed Seized Material, the nature and basis of any objection or claim for privilege or confidentiality. This paragraph seems to me to support the construction which I have taken of the provisions of Order 4 which, for present purposes, confine the categories of exception to claims of privilege or confidentiality. The substance of the regime is that independent computer experts are to be permitted to search and analyse copies of the hard disks as set out in that paragraph. Forensic methods and appropriate software may be used to extract the information for the purpose, amongst other things, of producing a directory and file listing. The paragraph goes on to determine the categories of files, emails and data to be searched by reference to categories set out in Order 7(c)(i)-(v). Suffice to say that the categories are broadly defined. 15 Order 10 provides for a report to be prepared by the independent computer experts upon completion of the searches. It is to include a list of the files extracted in the categories referred to in Order 7(c). 16 Order 11 is important. It provides that the respondents or their solicitors are permitted to inspect the "Extracted Materials" and "Digital Photographs" for the purpose of "identifying any documents claimed by the respondents to be privileged or confidential". The paragraph concludes with the words "and which ought not to be inspected by the applicants". 17 Order 12 provides that the respondents are to give the independent computer experts a signed list of inspected documents which the respondents claim to be privileged or confidential. 18 Under Order 13 the independent computer experts are to provide electronic copies of those parts of the Extracted Materials or Digital Photographs which do not form part of the "Disputed Electronic Materials" to the parties' solicitors. The definition of Disputed Electronic Materials was given in Order 12 and it extends to documents which the respondents claim to be privileged or confidential. 19 Order 14 provides for the respondents to file and serve affidavits setting out the nature and basis of any claim for privilege or confidentiality. Order 16 provides in effect for a complete release of the obligations arising from the principle in Home Office v Harman [1983] 1 AC 280. 20 On 16 October 2006 the computer experts prepared a report in accordance with Order 10. They stated that, in accordance with Order 7, they performed an independent analysis of the forensic images and extracted certain files from the images based upon the search regime. They stated that the results have been saved to a series of spreadsheets accompanying the report. 21 The computer experts' report was not provided to the solicitors for the respondents until 17 October 2006, and the relevant files ("Extracted Files") referred to therein were only made available for inspection on 8 November 2006. The solicitors inspected the Extracted Files and determined that there are approximately 284,000 electronic files in some 15,600 folders, and approximately 68,000 emails. Plainly the work involved in the search of that material to determine the existence of privileged or confidential material is significant. 22 Before the delivery of the experts' report, the respondents' solicitor swore an affidavit on 30 October 2006 identifying the nature and basis of his objection to the inspection of the hard copy materials. The affidavit introduced categories of exceptions described as "Disputed" and "Relavance" [sic]. The effect of this was substantially to confine the material available for inspection to that which relates to the sale of the electronic gaming machines in Peru. It is apparent that the same categories of objection will be taken to the electronic materials. The applicants do not dispute that I have power to revisit the orders if I consider it appropriate to do so in the interests of justice. 24 I am not persuaded that the respondents' construction of the orders is correct. As I have already said, it is in my view plain that Orders 4 to 6 envisage that the only objections that may be taken are on the grounds of privilege and confidentiality. It seems to me that the regime contemplated for electronic material is to the same effect as that which is to apply to hard copy documents. 25 It is true, as I have already said, that Order 11 concludes with words which might be thought to broaden the scope of the categories of excluded materials. However, it seems to me that what is contemplated by Order 11 is that the only exclusions are documents claimed to be privileged or confidential. This, I think, is borne out by reference to and examination of the regime explained in Orders 12 to 14. 26 The respondents submit that the purpose of the search orders made by Allsop J on 30 June 2006 was to preserve evidence contained on various hard drives or computers located at their premises. The respondents then submit that once the evidence is preserved access to the material falls to be determined in accordance with the usual principles, that is to say categories of discovered documents would then need to be determined and access would be given in the usual way. 27 The respondents submit that the applicants cannot overreach their usual discovery entitlements to have access beyond relevant material contained on the imaged hard drives. They submit that simply by obtaining a search order from a court the applicants do not automatically obtain an entitlement to traverse the entirety of the material retrieved by the independent experts. In my view that is not the proper construction of the orders which were consented to on 7 September 2006. I have already given my reasons for that. 28 Moreover, it seems to me that the approach proposed by the respondents is not consistent with the usual practice which applies to search orders. The terms of O 25B of the Federal Court Rules are to be considered in light of the practice which evolved in the years following the decision in Anton Piller KG v Manufacturing Process Ltd [1975] EWCA Civ 12 ; [1976] Ch 55. 29 Prior to the advent of the computer era, the practice was for a physical search to be conducted at the premises. Questions of relevance were not an issue, although provision was always made for the protection of material claimed to be privileged or confidential. The computer imaging which now takes place seems to me to be the equivalent of what Mr Cobden SC for the applicants called the "flick through", which took place in the searched premises in the days when only hard copy documents and other physical materials were the subject of searches. 30 I accept that the effect of the modern regime of computer imaging as applied in the present case is to grant an applicant a far more leisurely period in which to examine the seized materials than was previously available. This will be a particular concern where the seized materials are obtained from a trade competitor as has happened in the present case. This emphasises the draconian and exceptional nature of the remedy. 31 However, in order to obtain a search order an applicant must satisfy the stringent conditions laid down in O 25B r 3. As I have already noted, Allsop J was satisfied that the necessary conditions were met. His Honour was also satisfied that the search should not be limited to the precise cause of action known to the applicants when the search order was obtained. 32 It seems to me that all of that is reflected in the terms of the orders that were made on 7 September 2006 when the regime for access was adopted in the orders that I made on that date. I should add that the decision of Lindgren J in Microsoft Corp v Adelong Electronics Pty Ltd (1997) 37 IPR 283, at 291-292, though not directly in point, does suggest that a copyright owner will ordinarily be able to inspect all of the evidence in the possession of the alleged infringer without it being confined to the documents that relate to the cause of action then known to the copyright owner. 33 In my view the approach proposed by the respondents is not consistent with the purpose for which a search order is issued. It is not for the respondents to put to the applicants the task of identifying categories of documents to which they seek access on discovery. That would be to reserve to the respondents, against whom a strong prima facie case of infringement is required for the issue of the search order, the ability to limit the documents which are inspected to those that are subject of the accrued cause of action. I do not think this has been part of the ordinary practice of the Court in relation to the execution and implementation of search orders, nor does it seem to me to be reflected in the provisions of practice note 24. The exception is that the Home Office v Harman exemption, which is contained in Order 16, ought in my view to be deleted. In many instances such an exemption may be appropriate, but in the circumstances of the present case where the known infringement consisted of the sale of a limited number of gaming machines in Peru in 2000-2002 I do not think that the terms of Order 16 should be maintained. It seems to me to be contrary to the interests of justice in the case for them to remain as part of the court orders. It follows that I will make orders in terms of those that have been provided to me by senior counsel for the applicants. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J.

principles to be applied to search orders under o 25b of federal court rules inspection of documents interpretation and application of implementation orders whether categories of objection appropriate practice and procedure

The preliminary issue to which this gives rise is whether leave ought be given for the ground to be raised. For the purposes of the prompt disposition of this matter, I have decided to hear together the arguments both for leave and on the substantive ground itself. In those circumstances, the Tribunal was required, by the rules of procedural fairness, to give the Appellant an opportunity to comment on those inconsistencies. That subsection requires the Tribunal to invite the applicant to appear before the Tribunal to give evidence and to present argument "relating to the issues arising in relation to the decision under review": and see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515 at [34] - [35] . The appellant is a Pakistani national whose original refugee application based his alleged fear of persecution on his being a homosexual in Pakistan. 4 Given the course now sought to be taken by the appellant, it is appropriate to refer initially to the delegate's decision which was for s 425 purposes "the decision under review". The claims relating to his homosexuality are confused and inconsistent with other information he has provided. This leads me to find that he has fabricated a set of claims for himself for the sole purpose of engaging Australia's protection obligations. The appellant could have been left in no doubt that if the application for review to the Tribunal was to have any prospects of success he would have to surmount a challenge to his credibility and a critical scepticism about his claims, save if the Tribunal expressly indicated to the contrary. At the hearing before the Refugee Review Tribunal that challenge to his credibility was made quite explicit by the Tribunal itself. It was also indicated that inconsistencies between his oral evidence, or documents produced at the hearing (which raised new matters) and evidence previously given, provided possible bases for the Tribunal concluding that his evidence or the documents were fabricated. This in turn led to the Tribunal, after the hearing, sending a s 424 letter to the appellant which drew attention to the significance of inconsistencies or fresh evidence and invited his comment upon them. The appellant's response to the letter in turn produced the further inconsistencies between the appellant's oral testimony and specific responses made which inform the ground of appeal. 3.2 He claimed that he had been harassed, kidnapped and beaten in 2005. The claim to have converted on 9 March was inconsistent with the dates of other significant events in other material before the Tribunal. This cast doubt on whether he had a well-founded fear of being persecuted if he returned to Pakistan. 3.4 The Tribunal was not satisfied that he had a well-founded fear of persecution for a Convention reason and accordingly affirmed the decision under review. I asked him if there was anything further he wished to add before I closed the hearing. The Applicant said that he had not told any lies in the course of the hearing. He said that I could contact people in Pakistan if I wanted to check what had happened. He suggested that I could check with the newspapers in which the articles had appeared which he had produced. I noted again that there had been no mention of his kidnapping, of his conversion to the Shia faith or of his membership in the JYP in his original application. The Applicant said that he had been mentally upset when he had prepared his original application. I asked him if he understood that I could conclude that he had changed his evidence in light of the documents he had received from Pakistan. The Applicant said that he had been kidnapped and he had not known that he had to put this in his application. He repeated that he had converted to the Shia faith for his own security. He said that the police had failed to protect him. On 9 June 2006 the Tribunal wrote to the Applicant in accordance with section 424A of the Act indicating that it had information that would, subject to any comments he might make, be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The Tribunal stated that the information was as follows. The Tribunal noted that in his original application the Applicant had said that he had worked at Dewan Salman Fibre Ltd in Hattar from June 1993 until November 2005 and that he had lived in District Haripur from August 1993 until November 2005. The Tribunal noted that at the hearing before me the Applicant had said that he had lived in Taxila while working for Dewan Salman Fibre Ltd and that Hattar was the name of the road but the factory was located in the Taxila area. He had said that he had begun working for Dewan Salman Fibre Ltd in 1991, not 1993, and that he had ceased working at the factory approximately a year before he had left Pakistan at the end of November 2005 to come to Australia because he had had a chest infection and he had been advised to have a rest. He had said that he had subsequently been appointed as the General Secretary of the Human Development Welfare Society in Taxila and he had continued to hold this position until he had left Pakistan at the end of November 2005. The Tribunal noted that the Applicant had said that he had been living together with his partner Mohsin in Taxila from 1991 until Mohsin had left Pakistan to go to Italy in around 2003. The Tribunal noted that he had said that people in his village had known that he was gay before he had moved to Taxila in 1991 and that the Lashkar-e-Taiba had come to know of his relationship with Mohsin after 1995. The Tribunal stated that, as I had put to the Applicant in the course of the hearing, the fact that he had been able to continue living and working in Taxila from 1991 until he had left Pakistan at the end of November 2005 was relevant because it cast doubt on whether he had a well-founded fear of being persecuted for a Convention reason if he returned to Pakistan now. The Tribunal noted that at the hearing before me the Applicant had mentioned for the first time that he claimed he had been kidnapped by 'boys' belonging to the Lashkar-e-Taiba in 2005. He had produced a newspaper article which he had said mentioned that he had been kidnapped and an FIR which he had said he had lodged with the police in relation to the kidnapping. He had said that he had been kidnapped because he had been a member of the JYP which he had said stood for 'Jaffria Youth Pakistan' and was a Shia organisation. The Tribunal noted that the Applicant had produced a card and a letter from the JYP and he had mentioned for the first time that he claimed to have converted from the Sunni faith to the Shia faith on 12 March 2005 in Pakistan. The Tribunal noted that the Applicant had also produced a letter purporting to be from a lawyer stating that he had been forced to leave Pakistan due to religious sectarianism and a newspaper article which he had said referred to the fact that he was in Australia. The Tribunal noted that the Applicant had said that his younger brother in Pakistan had sent him all these documents a month before the hearing. The Tribunal stated that, as I had put to the Applicant in the course of the hearing, the fact that there was no mention of his claimed conversion to the Shia faith, his membership of the JYP or his claimed kidnapping in his original application or in the statement accompanying his original application might lead me to conclude that he had fabricated these claims on the basis of the documents which he had received from Pakistan. The Tribunal stated that I might conclude that there was no truth in his claims that he had converted from the Sunni faith to the Shia faith, that he was a member of an organisation called the JYP or that he had been kidnapped by the Lashkar-e-Taiba in 2005 because he was a member of the JYP. The Tribunal stated that I might conclude that the documents the Applicant had produced in support of these claims were likewise fabrications . He states in his response that he did not ask for help from anybody in relation to his case and that he had been scared that if he told any Pakistani that he was gay he would be hurt by them. However at the hearing before me he said that the manager of the convenience store where he was working in Australia, Mr Akbar Ali, had assisted him in preparing his application. Moreover it was his claim that he was homosexual which he mentioned in that application and it was his claims relating to his conversion to the Shia faith which were omitted. Whereas at the hearing before me he said that he had ceased working for Dewan Salman Fibre Ltd approximately a year before he had left Pakistan at the end of November 2005 to come to Australia because he had had a chest infection and he had been advised to have a rest, in his response to the section 424A letter he said that he had left his job there in November 2005 because everybody in the factory had known that he was gay. The Applicant said at the hearing before me that he claimed to have converted from the Sunni faith to the Shia faith on 12 March 2005 but in his response to the Tribunal's section 424A letter he said that his kidnapping, which he claimed had occurred because he was a member of a Shia organisation, the JYP, had occurred on 9 March 2005. The FIR a translation of which he produced suggests he reported the kidnapping to the police on 11 March and the translation of a newspaper article which he produced in relation to the kidnapping is said to have appeared on 12 March 2005. The Applicant said that a friend had telephoned him on 1 May (sic) 2006 and had told him that members of a Sunni organisation had come to his home and had beaten his parents and that his mother was in a critical situation in hospital. However he said that his mother had died on 6 March (sic) 2006 and the translation of a death certificate which he produced likewise gives this date. However the translation of a newspaper article which he produced in relation to this incident is said to have been published on 2 May 2006 which would be consistent with the Applicant's claim that his friend telephoned him on 1 May 2006 but not with his claim that his friend told him that his mother was in a critical situation in hospital if his mother had in fact died on 6 March 2006. As I put to the Applicant in the course of the hearing and again in the section 424A letter, I consider that the Applicant has fabricated his claims with regard to his conversion to the Shia faith, his membership of the JYP and the kidnapping on the basis of the documents he has received from Pakistan. Given that there was no mention of these claims in his original application and given the problems with the dates of events outlined in the preceding paragraph I do not accept that there is any truth in the Applicant's claims in this regard nor do I accept that the documents which he has produced are genuine. I do not accept that the Applicant has converted to the Shia faith, that he was a member of a Shia organisation called the 'Jaffria Youth Pakistan' or JYP, nor that he was kidnapped because of his conversion or his membership of the JYP. I likewise do not accept that his family have been harassed since he has left Pakistan because of his supposed conversion, his membership of the JYP or his connection with an organisation of eunuchs (as mentioned in the translation of a press article which the Applicant produced). As indicated above I do not accept that the documents which the Applicant produced at the hearing before me or the documents in respect of which he subsequently produced translations are genuine. I accept that the Applicant's mother died around two months before the date of the hearing before me (as the Applicant mentioned in the course of the hearing) but not that her death had anything to do with the Applicant's claimed conversion, his membership of the JYP or his connection with an organisation of eunuchs. Having regard to my findings of fact I do not accept that the Applicant has a well-founded fear of being persecuted for reasons of his religion or his membership of any particular social group such as the JYP or the organisation of eunuchs if he returns to Pakistan now or in the reasonably foreseeable future. As the Tribunal noted in its section 424A letter, the Applicant said in the course of the hearing before me that he had been living together with his partner Mohsin in Taxila from 1991 until Mohsin had left Pakistan to go to Italy in around 2003. He said that people in his village had known that he was gay before he had moved to Taxila in 1991 and that the Lashkar-e-Taiba had come to know of his relationship with Mohsin after 1995. As I put to the Applicant in the course of the hearing before me and again in the section 424A letter, I consider that the fact that he was able to continue living and working in Taxila from 1991 until he left Pakistan at the end of November 2005 casts doubt on whether he has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan now. As referred to above, in his response to the section 424A letter the Applicant said that he had left his job at Dewan Salman Fibre Ltd in November 2005 because everybody in the factory had known that he was gay but this contradicts his evidence at the hearing before me that he had ceased working there approximately a year before he left Pakistan at the end of November 2005 to come to Australia because he had had a chest infection. Implicit in this is the proposition that the issue so raised was a new issue. 11 In support of the claimed basis of the Tribunal's obligation to disclose this "issue" to the appellant for s 425 purposes, reliance is placed on the concluding sentence of [47] of the High Court's reasons in SZBEL . For convenience I have set out the entirety of [47] because the sentence relied upon can only properly be understood in the context of the paragraph as a whole. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 13 The Minister both opposes the grant of leave because the new ground lacks substantive merit and contends as well that the appeal would fail in any event. As I am satisfied that the ground is without merit, I will deal with the substantive ground and grant leave accordingly. 14 Before indicating the reasons for my view, it is appropriate to make an additional reference to the reasons in SZBEL as they enlarge upon the burden of s 425. The applicant is to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review '. The reference to 'the issues arising in relation to the decision under review' is important. The statutory language 'arising in relation to the decision under review' is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 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'. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. Not only did the Tribunal do nothing to engender any expectation that these were no longer operative issues in the review, the Tribunal in turn accentuated their centrality to it both in the questions it asked of the appellant at the hearing (as recorded in its reasons) and in its s 424A letter which referred (inter alia) to inconsistencies in the evidence he had given, questions asked at the hearing the answers to which cast doubt on his claim to having a well founded fear of persecution, to the veracity of fresh claims made at the hearing and to the authenticity of documents there produced. 16 It was, in my view, perfectly plain --- and should have been such to the appellant --- that the entirety of his claims and his credibility generally were in issue in the review. Against this background it cannot properly be said that any further inconsistencies exposed in his s 424A answers relating to his claims or any greater doubts his answers engendered about his credibility raised new or unexpected issues for which, in fairness, a further opportunity for comment ought to have been provided. To hold otherwise in the present case would be to give rise to what in a s 424A context, the High Court has described as "a circulus inextricabilis" of invitation and comment: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [20] . 17 What I have said is sufficient to warrant the dismissal of this appeal. I will order that (i) leave be given to raise the ground of appeal not raised below; (ii) the appeal be dismissed; and (iii) the appellant pay the first respondent's costs of the appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

appeal from federal magistrate refusing application for review inconsistencies between oral hearing at rrt and response to s 424a letter whether procedural fairness required the rrt to invite comment on those inconsistencies whether all issues, including credibility already in issue migration

Some of the material is in evidence and some of it is not. Argument in relation to the three applications, including written submissions, was completed on 20 August 2008, when I indicated the conclusions that I had reached in relation to most, but not all, of the material in dispute. On 21 August 2008, I made orders giving effect to those conclusions but reserved my decision in relation to some of the material in dispute. I have now reached a final conclusion in relation to all of the material in dispute. My conclusions and the reasons for them follow. 2 The applications are concerned with s 50 of the Federal Court of Australia Act 1976 (Cth) ( the Federal Court Act ) and Order 46 Rule 6 of the Federal Court Rules . Section 50 relevantly provides that the Court may make such order forbidding or restricting the publication of particular evidence, or the name of a party, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice . Order 46 r 6(1) of the Federal Court Rules provides that a person may search in the Registry for, and inspect, documents specified in r 6(2). Subject to an exception not presently relevant, affidavits are not specified in r 6(2). Rather, r 6(3) specifically provides that, except with the leave of the Court or a judge, a person who is not a party to a proceeding must not inspect an affidavit. By notice dated 30 September 2005 ( the Notice ), issued pursuant to s 29 of the Commission Act, an international accounting firm with an office in Sydney ( the Accountants ) was required to produce, to an officer of the Commission, documents described in the schedule to the Notice. The schedule referred to documents pertaining to a number of individuals and entities, including the present applicant. The Accountants produced a number of documents to the Commission in compliance with the Notice. 4 The Notice contained a notation, pursuant to s 29A of the Commission Act, that prohibited the Accountants from disclosing the existence of the Notice or any official matter connected with it. However, the notation was subsequently varied to allow the Accountants to disclose the existence of the Notice to the applicant. The present proceeding was instituted in early 2006, after the applicant became aware that the Notice had been issued to the Accountants. 5 A claim to legal professional privilege on the part of the present applicant was made in respect of a number of the documents produced to the Commission. The basis of that claim was that each of the disputed documents was prepared, or evidenced, a communication made, for the dominant purpose of the giving of instructions for, or the obtaining of, legal advice, or the provision of legal services, for or on behalf the applicant. Instructions for such advice were given by an individual ( the Consultant ) and the advice was furnished to the Consultant. The Consultant was originally the applicant in the proceeding. 6 The Commission disputed that the documents were prepared for, or evidenced communications made for, the purposes described above. The Commission also contended that, even if the documents were prepared for or evidenced communications made for those purposes, there were reasonable grounds for believing that any such communications were made in the furtherance of fraud or the commission of an offence, such that legal professional privilege did not attach to any of the documents in dispute. 7 When the proceeding was originally commenced, the Consultant was referred to by the pseudonym " A3 ". Subsequently, the present applicant, who has been referred to by the pseudonym " P ", was joined as an applicant and, later, the Consultant was removed as an applicant. Orders were made by the Court relieving both the Consultant and the applicant from compliance with Order 4 rule 4(1)(a) of the Federal Court Rules , on the basis that sealed envelopes, marked "NOT TO BE OPENED UNTIL FURTHER ORDER OF THE COURT" and containing the respective names and addresses of the Consultant and the applicant, would be filed with the Court. The Court also ordered, pursuant to s 50, that publication of the names and addresses of the Consultant and the applicant be forbidden and that, until further order, the Consultant and the applicant be referred to respectively by the pseudonyms. In addition, in the course of the proceeding, orders were also made under s 50 concerning parts of certain affidavits filed and read in the proceeding and certain of the documents admitted into evidence in the proceeding. 8 The course described above was adopted with the consent, and in some instances, at the behest, of the Commission. A principal reason why that course was adopted was the concern expressed by the Commission that disclosure of names and other documents issued by the Commission in relation to its special investigation could prejudice the effectiveness of that investigation (see C v Australian Crime Commission [2005] FCA 1736). 9 After hearing the applicant and the respondents and after examining the documents in dispute, I concluded that, on the balance of probabilities, save for minor exceptions, the documents in dispute are documents brought into existence for the predominant purpose of either requesting or providing legal advice in relation to the affairs of the applicant. For the greater part, that advice concerned matters of taxation in either Australia or the United States. I concluded that the advice could not fairly be characterised as mere accounting or taxation advice, in the sense of expressing opinions concerning accounting treatment or accounting records. Rather, the advice in question could fairly be characterised as legal advice in relation to certain taxation consequences of proposed action on the part of the present applicant (see A3 v Australian Crime Commission (No 2) [2006] FCA 929). 10 The Commissioner has now abandoned its contention as to fraud or the commission of an offence. The documents that are the subject of a claim for legal professional privilege are therefore to be returned to the applicant. However, before final disposition of the proceeding, the present three applications were made. • Copies of any documents on the Court's file that have been found to be the subject of legal professional privilege be returned to the applicant. • Documents identified in the schedule to the affidavit by the applicant's solicitor that have not been tendered be removed from the Court file and returned to the parties. 12 By notice of motion filed on 24 July 2008, the respondents ask the Court for orders under s 50 that several affidavits filed by the respondents, which have not been read in the proceeding, not be disclosed to any person other than the respondents. Section 50 applies only to evidence and the names of parties. In any event, no such order may be necessary, in the light of Order 46 rule 6 of the Federal Court Rules . • Any orders made in the proceeding pursuant to s 50 prior to the date on which the motion is determined be vacated. 14 There are four categories of material that are the subject of the motions. • Material on the Court's file consisting of affidavits that have not been read and parts of affidavits that were either rejected or not read. • Material that would identify the applicant or the Consultant whether read or not read. • Material in affidavits and exhibits that has been received into evidence, being material that is currently the subject of orders under s 50. I shall deal with each category separately. The documents in dispute were considered by the Court on the basis that they remained confidential. The reasons for my determination did not disclose the contents of the documents. I do not understand the Interveners to have advanced any serious contention that the privilege should be taken to have been waived in any way. 16 Copies of the privileged documents that remain on the Court file should be returned to the applicant. No basis has been established upon which any person should be given access to those documents without the consent of the applicant. There is no order under s 50 forbidding access to such material. Indeed, s 50 does not contemplate an order in relation to any material other than evidence or the name of a party. The question is whether such leave should be granted pursuant to Order 46 r 6(3). 18 In general, the Court is obliged to exercise its jurisdiction in open court. Thus, once material has been admitted into evidence, either as an exhibit or as affidavit or viva voce testimony, the principle of open justice requires that the material be open to and available for the public. That is clear from s 17(1) of the Federal Court of Australia Act , which gives statutory force to the principle that justice must be administered publicly in open court and gives recognition to the weight of public interest that attaches to that principle. 19 However, that principle has nothing to do with material that, albeit is on the Court's file and might be available for one of the parties to deploy at a trial or at a hearing, has not in fact been admitted into evidence. No principle of open justice requires that a person other than the parties should, in the ordinary course, have access to material that is not in evidence. The fact that the parties have filed affidavits in anticipation of a hearing does not of itself compel them to rely on the affidavits. It may be that an opposing party could tender an affidavit against the party who filed it. Such an affidavit would then be in the same category as any other evidence. Until that time, in the ordinary course, however, there is no reason why a person other than the parties should have access to the material, simply because it is on the Court's file. In the ordinary course, exhibits to affidavits should not be filed and should therefore not be on the Court file. It is only when exhibits are tendered that they become part of the Court record. 20 From the point of view of open justice, there is no reason to grant access to material that has not been tendered by either party or, if tendered, has not been accepted into evidence. There is no case for granting leave to the Interveners to have access to such material. The contention is based upon his concern that to disclose the identities could involve contravention of provisions of the Commission Act. He says that the regime of secrecy that was put in place at the commencement of the proceeding was necessary in order to protect him and the Consultant from the possible consequences of disclosure in breach of s 29B of the Commission Act that might otherwise have occurred by reason of his commencement of the proceeding, filing affidavits, tendering evidence and making submissions. He contends that it is arguable that by coming to the Court and doing those things he may have committed an offence under s 29B by disclosing the identity of the applicant or the Consultant, since that would have involved disclosing the existence of the relevant summons or notice, or information about it. It would also have involved disclosing the existence of, or information about, an official matter connected with the summons or notice, namely, the fact of the Commission's special investigation. He contends, therefore, that the administration of justice requires the continuation of the order under s 50. Section 29(1) provides that an examiner may, by notice in writing served on a person, require the person to attend before an examiner, or a member of staff of the Commission, and to produce a document or thing specified in the notice. 23 Section 29A(1) provides that the examiner issuing a summons under s 28 or a notice under s 29 must, or may, as provided in s 29A(2), include in the summons or notice a notation to the effect that disclosure of information about the summons or notice, or of any official matter connected with it, is prohibited, except in the circumstances, if any, specified in the notation. Section 29B(3) provides that, if disclosure is made to a person as permitted by s 29B(2), that person must not disclose the existence of, or any information about, the summons or notice, or any official matter connected with it, except as permitted by s 29B(4). 25 Under s 29B(4)(b), a person to whom information has been disclosed, as permitted by s 29B(2), may disclose that information, if the person is a legal practitioner, for the purpose of giving legal advice, making representations, or obtaining assistance under s 27, relating to the summons, notice or official matter. Section 27 relevantly provides that a person who proposes to make an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ( the Judicial Review Act ) for an order of review in respect of a matter arising under the Commission Act may make an application to the Attorney-General for the provision of assistance. 26 Section 51 of the Commission Act establishes a secrecy regime. Section 51 applies to officers of the Commission, members of the staff of the Commission and examiners. Where the Commission, the CEO of the Commission or an examiner in his or her official capacity, is a party to a relevant proceeding and it is necessary to do so for the purpose of carrying into effect the provisions of a relevant Act, or for the purposes of a prosecution instituted as a result of an operation or investigation carried out by the Commission in the performance of its functions, such a person is permitted to divulge or communicate to a court a matter or thing that has come to his or her notice in the performance of his or her duties under the Commission Act. 27 Further, the Commission Act itself recognises that there might be judicial review in respect of a matter arising under it. Section 57 of the Commission Act provides for a special regime in relation to an application for an order of review under the Judicial Review Act. There is nothing in s 57 to suggest that any proceeding under the Judicial Review Act is to be constrained by the terms of ss 29A and 29B. It may be that the Commission, in order to protect the secrecy and integrity of an investigation, may itself seek orders under s 50 once a proceeding for judicial review in respect of a matter arising under the Commission Act is commenced. However, that is a different matter from the proposition that there is a risk of possible contravention of s 29B by the commencement of such a proceeding. 29 The Consultant received three summonses under s 28 of the Commission Act, dated 19 August 2005, 27 February 2006 and 3 August 2006. Each contained a notation under s 29A(1) of the Commission Act prohibiting disclosure. The Notice was then disclosed to the applicant and to the Consultant by the Accountants. 31 The present applicant received a summons under s 28 of the Commission Act dated 2 November 2006. 32 Thus, at the commencement of this proceeding on 23 February 2006, the Notice had been received by the Accountants and a summons had been received by the Consultant. The applicant contends that, at that time, both he and the Consultant were subject to the prohibition on disclosure in the Notice and the Consultant was subject to the prohibition on disclosure in the summons received by him. The applicant also contends that, by November 2006, bearing in mind that some orders under s 50 were made after that time, the Consultant was subject to the prohibitions in the two further summonses received by him and the applicant was subject to the prohibition in the summons served on him. 33 The applicant asserts that both he and the Consultant were subject to the prohibition in the Notice, which forbade the disclosure to the public of matters relating to the Notice as would have occurred in legal proceedings. He says, further, that the Consultant was, from the commencement of the proceeding, and the applicant was, from November 2006, subject to the prohibitions in the summonses received by them and there is no basis for reading down those prohibitions. It would be a serious disincentive, he says, to any litigant to approach the Court if, by doing so, the open conduct of litigation would involve the litigant risking the commission of such an offence. Accordingly, so the argument runs, the applicant and the Consultant may not have breached s 50 by prosecuting the proceedings under the cloak provided by the s 50 order. However, they say that the lifting of the s 50 orders at this stage may expose the applicant and the Consultant to criminal liability for the actions they took on commencing and prosecuting these proceedings under the cloak of the s 50 orders. The orders under s 50 were properly made at the respective times when they were made and nothing has changed that would justify revocation of the orders, particularly in circumstances where the applicant has conducted himself in the proceeding on the basis that the orders were in force. 34 On 18 August 2008, the notations contained in the summonses issued to the Consultant and to the applicant were revoked. Further, on the same day, the notation contained in the Notice was also revoked. Neither the applicant nor the Consultant is any longer subject to prohibitions on disclosure imposed by s 29B(3) of the Commission Act. 35 The applicant contends, however, that the revocation of the notations does not alter the position. He says that the exercise of a power to vary or revoke the notations could not vary the effect of the notations retrospectively. He says that, in any event, the purported variations are not expressed to have retrospective operation. He says that, therefore, the revocation of the notations, with only prospective effect from the date of the revocation, does not change the fact that there was a proper basis for making the orders under s 50 when they were made and no reason to discharge them has been made out. 36 It is my view that if the commencement of the proceeding or the filing of affidavits, the tendering of documents or the making of submissions constituted a contravention of s 29B of the Commission Act, that offence has been committed. The fact that orders had been made under s 50 prohibiting the publication of evidence or the names of parties would not alter the fact that such an offence was committed. The making of the orders may have had the effect of limiting the extent of the disclosure that might otherwise have followed from commencement and prosecution of the proceeding, assuming that to do so would have constituted an offence under s 29B. However, the making of the orders under s 50 could not of itself exculpate the applicant and the Consultant from the offence of disclosure if, by doing any of those things, there would have been a disclosure in contravention of s 29B. 37 More importantly, if there was no offence committed by the commencement or prosecution of the proceeding, revoking the orders made under s 50 could not possibly retrospectively render conduct, which was lawful when the conduct occurred, unlawful. The orders under s 50 were made, for the most part, at the behest of the Commission, albeit with the support of the applicant and the Consultant. The orders were not made in order to avoid the possibility that an offence might be committed by the commencement of the proceeding or the filing of affidavits, the tendering of documents or the making of submissions in the proceeding. The orders were made to protect the integrity of the Commission's special investigation. 38 During the course of the proceeding, written submissions were made to the effect that it would be grossly unfair to the Consultant, both in his personal capacity and "as someone whom the Court knew had been charged with managing significant aspects" of the affairs of the present applicant, to be subjected to the likely intense media scrutiny that would follow if the s 50 orders were revoked, but at the same time to be prohibited, by the operation of the Commission Act, from being able to respond in any meaningful way should he wish to do so. The submission was that that was the effect of ss 29A and 29B in the present circumstances. 39 The applicant and the Consultant also submitted in the course of the proceeding that it would be very unfair to them for the confidentiality regime to be lifted in circumstances where evidence was being led against them that neither they nor their legal representatives were permitted to see. They submitted that one of the corollaries of open justice was that a party be able to defend himself publicly against allegations and evidence put against him: while the identity of the party is known, so too is his answer to whatever is said against him. However, they contended that in the present case the applicant and the Consultant were not able to do that. Thus, they said, the confidentiality regime that protected their identities as well as the identities of others was some counter balance to the circumstances that the applicant and the Consultant themselves were unable to know what was being put against them. 40 Those considerations however, no longer have any relevance to the circumstances that now exist. There are no longer operative notations that prohibit disclosure by the applicant or the Consultant. There is therefore nothing to stop them from defending themselves publicly against any allegations that may have been made or may in the future be made. 41 There is no longer any prohibition on disclosure. Assuming that the deletion or revocation of the notations or notations operates only prospectively, as from 18 August 2008, there is no longer any prohibition. Whatever the applicant and the Consultant have done since 26 February 2006 has been done. The revocation of the orders made under s 50 with effect from a time after 18 August 2006 could not possibly involve the applicant or the Consultant in a disclosure that has already occurred. The revocation of the orders under s 50 would operate prospectively only. The effect of the revocation is that material that was previously the subject of prohibition of publication may now be published. That publication will occur after the revocation of the orders. 42 Cogent reasons have been advanced on behalf of the Interveners as to why the commencement of the proceeding and the filing of affidavits, the tender of documents and the making of submissions in the proceeding, in the bona fide pursuit of a remedy expressly contemplated by the Commission Act, would not contravene s 29B. The Court would be slow to give to s 29B the construction suggested on behalf of the applicant. Such a construction would make s 29B a very severe privative provision and quite possibly unconstitutional. However, in the light of the conclusions I have already expressed, I do not need to express a final view on the question. 43 I do not consider that the regime presently in place, which prohibits the disclosure of the identity of the applicant or the Consultant, is necessary to prevent prejudice to the administration of justice. There is no longer any justification for an order under s 50 forbidding disclosure of the identity of the applicant or the Consultant. Accordingly, on 21 August 2008 I ordered that the sealed envelopes may be opened and their contents be made available for inspection by the public. The Interveners urge the Court to discharge all orders made under s 50 to date. The applicant, nevertheless, presses for orders under s 50 in respect of certain of the material that has been admitted into evidence during the course of the proceeding. 45 The applicant advances similar arguments as to his concern about the operation of s 29B(1) in relation to the evidence adduced in the proceeding that refers to the Commission's investigation. He says that, whether or not the mere disclosure of the identities of the applicant and the Consultant would contravene s 29B(1), the material that has been received into evidence, either by way of affidavit or exhibit, includes information about official matters connected with the Notice. The applicant says that he could not have conducted the proceeding without disclosing that information. Accordingly, it was necessary, in order to prevent prejudice to the administration of justice, that publication of that material be forbidden. If it were not, he would not have been able to conduct the proceeding without exposing himself to prosecution for commission of an offence against s 29B(1). It is implicit in that contention that tender of the relevant material, in circumstances where publication of the material was limited to the legal representatives of the parties, does not involve disclosure within the meaning of s 29B(1). 46 That aspect of the submissions made on behalf of the applicant replicates the submissions made in support of the continued suppression of the identity of the applicant and the Consultant. For the reasons that I have already given above, I do not consider that there is any substance in the contention that revocation of the orders made under s 50 could retrospectively render unlawful conduct of the applicant or the Consultant, which was lawful when the conduct occurred, unlawful. If the filing of affidavits, the tendering of documents or the making of submissions in the proceeding constituted an offence under s 29B, that offence has been committed. Further, as I have said, there are cogent reasons for concluding that s 29B should not be construed in a way that would constitute it a severe privative provision. 47 However, the applicant advances other contentions in support of the continued prohibition on the publication of evidence. There are two categories of the material that has been admitted into evidence and is the subject of contentions on behalf of the applicant that the material should continue to be the subject of an order under s 50 prohibiting its disclosure to any person other than the parties to the proceeding and their legal advisers. 48 The first category consists of five affidavits filed on behalf of the applicant and the Consultant, which were, subject to minor rejections, admitted into evidence. One of those affidavits was sworn by the applicant's solicitor. The other four were sworn by an employee of the Accountants, who had the carriage of matters on behalf of the applicant. That evidence was adduced to demonstrate the circumstances in which the documents that were the subject of the claim to legal professional privilege were brought into existence. 49 Redacted versions of the affidavits were tendered on the hearing of these three applications. The redactions were limited to the identification of particulars, mainly names of individuals, who were involved in the giving and receiving of advice on behalf of the applicant. The applicant accepted that, apart from the redacted parts, those affidavits should not be the subject of any continuing s 50 order. I am not persuaded that a case has been made out for the continuation of any s 50 order in respect of the redacted material and I ordered that the affidavits be made available for inspection. 50 All of the material in the second category consists of documents exhibited to an affidavit sworn by the applicant's solicitor on 13 February 2008, which was filed on 19 My 2008. The affidavit was sworn in connection with an interlocutory dispute between the applicant and the Commission concerning discovery by the Commission in relation to the Commission's allegations that the disputed documents were not the subject of legal professional privilege because they had been brought into existence in the furtherance of fraud or the commission of an offence. The applicant sought discovery by the Commission of the material in the possession of the Commission that would tend to rebut the Commission's contentions in that regard. 51 The affidavit exhibited a bundle of documents which was admitted into evidence in connection with the discovery dispute. (b) Copies of orders made by the Court in the proceeding and extracts from the transcript concerning the question of discovery. (c) A copy of an inference schedule filed by the Commission at the direction of the Court which particularised the Commission's allegations that the privileged documents were brought into existence in the furtherance of schemes to evade the incidence of income tax. (d) A copy of the applicant's motion seeking discovery, written submissions in relation to the motion and an affidavit sworn by an officer of the Commission in response to the motion. (e) Copies of various documents extracted from files maintained by the Accountants that the solicitor believed were among the documents produced by the accountants to the Commission as a consequence of the Notice. 53 Before dealing with the applicant's contentions, it is desirable to say something about the operation of s 50. Before making an order under s 50 of the Federal Court Act, the Court must determine whether it appears that the order is necessary in order to prevent prejudice to the administration of justice. Thus, s 50 is concerned with prejudice in respect of the exercise by the Court of the judicial power of the Commonwealth ( Herald & Weekly Times v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at [443] ). It can be an unfortunate incident of the open administration of justice that embarrassing, damaging and even dangerous facts may occasionally be disclosed ( Herald & Weekly Times v Williams [2003] FCAFC 217 ; (2003) 130 FCR 435 at 444). 54 Of course, if the embarrassment or damage that publicity might occasion is such that it would prevent or deter a person from prosecuting or defending a proceeding in the Court or if there was a real risk, as opposed to a remote possibility, that that would occur, the position may be different. If such a situation arose, it must be weighed in the discretionary balance that is to be struck between the public interests in open justice, on the one hand, and in preventing prejudice to the administration of justice, on the other (see Herald and Weekly Times [2003] FCAFC 217 ; (2003) 130 FCR 435 at 444-445). That, however, is not this case. 55 Open justice is the underlying assumption of s 50. However, the reference to preventing prejudice to the administration of justice is not a reference to the need to preserve open justice. Rather, it is a reference to the public interest in the Court's endeavouring to do justice between the parties. It is not possible to define, in advance, the degree of prejudice to the administration of justice that would justify the making of an order under s 50. Where, for example, failure to make an order would lead to the destruction of the very subject matter of the suit, the exercise of the discretion may well be appropriate, since the refusal to make an order in such a case could well defeat the purpose of achieving justice between the parties and thereby disappoint the public interest in having the Court deal responsibly with the confidential affairs of parties (see Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 at 234). Again, that is not this case. 56 While the principle of open justice is of great importance in exercising the discretion under s 50, it is not necessarily the whole weight of that principle that is to be placed on the scales. The derogation from the principle that is involved in making an order under s 50 may be very great. However, it will not necessarily be very great and, in the exercise of the discretion, the degree of derogation involved in the proposed order is an important matter to be considered ( ABC v Parish [1980] FCA 33 ; (1980) 29 ALR 228 at 236). 57 At an early stage, the applicant's solicitor was informed by a solicitor acting for the Commission that public revelation of the name of the applicant, and individuals and entities involved in the Commission's special investigation, could prejudice the investigation. The applicant's solicitor thereafter proceeded on the assumption that, in order to allow for the effective conduct of the proceeding, open communication between the applicant and the Commission would occur by way of correspondence. The solicitor says that he conducted the proceeding on the basis of his understanding that, in the event of there being a necessity to obtain interlocutory orders in the proceeding, appropriate steps would be taken to ensure that, as far as possible, material deployed in support of such orders would be kept confidential. That was of importance to the applicant because the material likely to be deployed related to his personal, financial and taxation affairs. The solicitor prepared and filed affidavits and exhibits to affidavits on the basis of his assumption that the prospect of orders being made under s 50 in respect of such material would be maximised if the Commission did not change its position of either supporting or not opposing the making of such orders. The applicant's solicitor has conducted the proceeding on the basis that the Commission would either consent to, or not oppose, confidentiality. 58 In reliance upon his understanding that material would be kept confidential, the present applicant, on his solicitor's advice, filed affidavits that exhibited material that the solicitor would have advised the applicant to deploy differently or not at all, if the material was likely to be placed in the public domain. The applicant's solicitor says that material has been deployed by him in an un-redacted form in circumstances where it would either have been redacted or not have been deployed at all, if confidentiality for the material was not assured. 59 Further, the applicant points out that this proceeding arose in the context of a series of secret inquisitorial steps that are expressly contemplated by the Commission Act. He has established that the documents obtained by the Commission pursuant to the Notice are subject to legal professional privilege and the Commission has now abandoned its claim that the documents were brought into existence in the furtherance of fraud or the commission of an offence. 60 The applicant is a prominent figure. He says that the material in respect of which he seeks the continuation of orders under s 50 includes matters of detail that, in the age of the internet and other electronic research, would permit delving into his personal, financial and taxation affairs in a way that is inconsistent with what would otherwise be his right to maintain confidentiality in relation to those affairs. He says that the material that is otherwise available to the public ought to satisfy the public interest in open justice without destroying his right to preserve confidentiality in relation to his personal, financial and taxation affairs. 61 However, that argument reverses the correct approach. The question is not whether the public has access to sufficient information to enable it to understand the nature and outcome of the proceeding. The question is whether, once material has been introduced into evidence, it is necessary, in order to prevent prejudice to the administration of justice, that that material not be made available to the public. 62 The applicant has not adduced evidence that any specific damage or prejudice would be occasioned or might be occasioned by the disclosure of the material in question. He simply puts it on the basis that the evidence includes his private and confidential information and that he would not have tendered it or have permitted it to be admitted into evidence had he known that it might become public. 63 It is for the applicant to establish a case for making or maintaining orders under s 50. It has not been suggested that the Commission agreed to support confidentiality in respect of any particular part of the material that is now in evidence. The highest that the applicant puts it is that his solicitor understood that the Commission would either consent to or not oppose the making of an order under s 50. On the other hand, the Commission has been careful to maintain confidentiality in respect of material that has not been tendered. While the Commission maintains that, for a time, the integrity and secrecy of its investigation required confidentiality, it was apparent that the need for such confidentiality was limited temporally. 64 The applicant is effectively seeking confidentiality on the basis of a notion akin to estoppel. No such estoppel can run against the Court or the public interest. Of course, if the Court had been informed that material was to be tendered only on the basis that an order under s 50 would be made or continue in force, fairness may require that the order be maintained. However, the applicant does not put his case on that basis. 65 It may be that, in the expectation that orders under s 50 would be made, material in an unredacted form was included in affidavits and exhibits filed on behalf of the applicant. However, it is entirely a matter for the Court, having regard to the criteria set out in s 50, whether any order restricting publication or disclosure of evidence should be made. It is not a matter for agreement between parties as to whether an order under s 50 will be made or, assuming an order is made, whether a subsequent order might be made varying or discharging the order. A fortiori , the fact that the applicant's solicitor proceeded on an assumption that a restriction on the publication of evidence may be permanent is of no consequence unless, perhaps, the evidence was tendered in circumstances where the Court was informed that, unless a permanent order were made, the evidence would not be tendered. As I have said, questions of fairness may then possibly arise. However, the applicant does not put his case on that basis. In either event, ultimately it is a matter for the Court, in the light of the criteria specified in s 50, to determine whether an order should be made and whether an order, having been made, should be discharged or varied. 66 The Interveners were given the opportunity of adducing evidence to show whether significant parts of the material in question is already in the public domain. The Interveners relied on an affidavit of their solicitor, Ms Gina McWilliams. Ms McWilliams conducted searches of various databases using the applicant's name for the purpose of determining to what extent, if any, information about the applicant's involvement in the Commission's special investigation was in the public domain. The searches revealed that it has been reported that the applicant has personally asserted in public that his affairs are the subject of an investigation by the Commission. The searches also revealed that several media sources asserted that the affairs of the applicant are the subject of a special investigation by the Commission. On the other hand, the searches did not reveal information concerning the personal, financial or taxation affairs of the applicant in the detail contained in the evidence in respect of which the applicant seeks the continuation of orders under s 50. 67 It has not been suggested that disclosure of the material in part E would cause particular or specific harm or damage to the applicant, other than possible embarrassment and inconvenience by reason of his private affairs' becoming public. I do not consider that the applicant has advanced any cogent reason for the Court to conclude that it is necessary, in order to prevent prejudice to the administration of justice, that publication of the documents in part E be restricted in any way. 68 I accept that it is was the Commission's allegation, that there were reasonable grounds for believing that the privileged documents were brought into existence in the furtherance of a fraud or the commission of an offence, that prompted the applicant to tender the evidence in connection with the interlocutory dispute concerning discovery. Further, I accept that the documents in part E were tendered and received into evidence in circumstances where there was an order under s 50 in force in relation to the evidence. However, the s 50 order was only ever operative until further order by the Court. Further, as I have said, it was made at the behest of the Commission, in order to preserve the integrity of the Commission's special investigation. Now that that integrity is no longer at risk, there is no longer any justification for a continuing departure from the primary assumption that proceedings in the Court are to be conducted in public. 69 The material in parts A and C is of a slightly different nature. Part C consists of the Commission's schedule of inferences, which it asserted could be drawn as to whether the applicant was engaged in schemes to evade the incidence of income tax. The relevant parts of the correspondence in part A refers to the inferences that the Commission asserted could be drawn. Ultimately, I consider that this material is in the same position as the material in part E. That is to say, I do not consider that the applicant has established that it was only because of the expectation that s 50 orders would continue in perpetuity that the other material in question was tendered. It would be fair to conclude that the applicant's decision to adduce evidence was driven by the object of succeeding in his application against the Commission. It is difficult to see how the proceeding could have been prosecuted otherwise than by tender of the material in question. In the absence of the material, it would have been well nigh impossible for the Court to understand what the issue was. The Court directed the Commission to particularise its assertion that there were reasonable grounds for believing that the privileged documents in dispute had been brought into existence in the furtherance of a fraud or commission of an offence. There is no evidence to suggest that the Commission was motivated by bad faith of some sort. 70 I do not consider that any basis has been established on behalf of the applicant for the continuation of any order under s 50. The orders were made for the purposes of protecting the integrity of the Commission's fresh investigations. Whether or not that was a justifiable basis for making such orders is not presently in question. The only question is whether there should continue to be an order in force prohibiting the publication of material that was in evidence before the Court, apart from the documents that have been found to be the subject of legal professional privilege. 71 I consider that there is no longer any justification for continuation of orders under s 50. The orders now in force should be revoked. Access to those documents should be denied to anybody other than the applicant and his legal advisers. 73 The application by the Interveners for access to material in the Court's file should be granted to the extent of permitting them, and any member of the public, to have access to any parts of the affidavits and other documents that have been admitted into evidence. The application for access should be denied in so far as it relates to any affidavits or part of affidavits and any other documents that have not been admitted into evidence. 74 The sealed envelopes that have been lodged with the Court and are contained in the Court file should be opened and their contents should be made available for inspection by the public. In so far as any order under s 50 prohibits the publication of the identity of the applicant or the Consultant, the orders should be revoked. 75 All other orders made under s 50 restricting access to or publication of documents that have been received into evidence should be revoked. 76 There remain questions as between the applicant and the Commission concerning the final relief to be granted to the applicant. I propose to stand the proceeding over for directions at a time that is convenient to the parties, for that question to be ventilated. I also propose to give directions for the parties to make submissions, if they wish, as to the costs of the proceeding, including the costs of the three applications presently before me. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

confidentiality orders s 50 of the federal court of australia act 1976 (cth) whether confidentiality orders should continue in respect of evidence which was adduced and tendered in the expectation that confidentiality orders would continue to apply in respect of the evidence principle of open justice whether embarrassment caused by the disclosure of confidential personal, financial and taxation information warrants the making of confidentiality orders onus of proof where confidentiality orders have been made and the court is asked to rescind those orders practice and procedure

On 21 November 2006, the applicant's appeal was dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) ('the Act') because the applicant failed to attend the hearing. The applicant claims in his supporting affidavit that he was ill on 21 November 2006 and that he arranged for a medical certificate to be presented to the Court. Section 25(2B)(bb)(ii) of the Act confers a power on the Court to dismiss an appeal for failure of the appellant to attend the hearing. Section 25(2B)(bc) of the Act empowers the Court, where an appropriate basis has been made out, to set aside an order which has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default. 2 On this application I need to consider two matters: (a) whether the applicant has an arguable case; and (b) whether the applicant has provided a satisfactory explanation for non-attendance. I refer generally to the discussion in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648 per Jacobson J. The background to this application and the applicant's grounds of appeal filed on 18 August 2006 are set out in my reasons for judgment previously delivered on 21 November 2006: see MZXJN v Minister for Immigration and Multicultural Affairs [2006] FCA 1624. There is nothing to indicate that the Tribunal's finding were not open to it on the evidence. It cannot be said the Tribunal failed to take into account any relevant consideration or took into account an irrelevant consideration or asked itself the wrong question. The Tribunal was not satisfied the applicant's claims demonstrated any Convention nexus. This was a finding of fact, which on the evidence before it was open to be made by the Tribunal: see SZFYC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1810 at [22] . 4 The Tribunal also reached its conclusion about the absence of protection obligations on the basis of an independent reason. The Tribunal considered and dealt with a factual substratum of the applicant's claims. The Tribunal was not satisfied that even if the claimed circumstances existed in Pakistan they would give rise to serious harm amounting to persecution. I cannot find any basis for the conclusion that the Tribunal misconstrued or misapplied section 91R of the Migration Act 1958 (Cth). Nothing in the Tribunal's reasons suggest that it treated the examples in s 91R(2) as an exhaustive statement of what constituted or might constitute serious harm: see VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [60] to [66] per Merkel J. The Tribunal was entitled to consider those examples set out in subsection 91R(2) for guidance: see SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [13] . 5 Finally, what constituted or might constitute serious harm amounting to persecution within the meaning of the Convention was a matter of fact and degree for the Tribunal: see Das v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 208 ALR 229 at 237-238 per Sundberg J. 6 The applicant has not sought to articulate any other basis upon which it might be considered or suggested that the Tribunal's decision is affected by jurisdictional error. I observed that the certificate did not address the question of why the condition referred to would prevent the applicant from travelling to Court and effectively participating in a hearing. Accepting that implicit in the delivery of the certificate was an application for an adjournment, I considered that the mere giving to the Court of a certificate without further explanation was not a proper basis for an adjournment. 8 In his affidavit sworn 19 December 2006 the applicant states that he was unaware of the importance of attending Court on the day of his hearing. He does state that he was sick on 21 November 2006 and could not attend the Court. The applicant incorrectly thought that the Court would see his medical certificate and give the applicant another chance to come to Court. The first respondent contends that this is not an adequate explanation provided for the applicant's failure to attend Court. I do not accept, in this regard, the first respondent's contention. The applicant disclosed the fact that he was sick and could not attend. I would infer, now that the applicant has deposed of these matters, that the applicant could not attend the Court because of his illness. He thought the delivery of the medical certificate would be satisfactory and he was unaware of the risk he was running in not attending the Court. On this evidence, whilst not entirely satisfactory, I am satisfied the applicant has given a satisfactory explanation for his non-attendance on 21 November 2006. The basis of the application seemed to be that the applicant wanted the opportunity to seek legal aid. In my view the applicant has had ample opportunity to seek such legal aid, having regard to the fact that, as I am informed and accept, at relevant times, both before the Federal Magistrates Court of Australia and before this Court, the applicant has had the opportunity of approaching legal aid and has had the availability of interpreters to assist him. 10 I also observe that in the 19 December 2006 affidavit, the applicant deposes that he had arranged for "a friend who has been helping me in relation to my legal matters", so it would appear that from that time he has had someone who could assist him if there was assistance needed in relation to legal matters. I do not therefore consider that the adjournment should be allowed and I so disallowed the adjournment application at the beginning of this matter, upon hearing and considering it. I would therefore propose to dismiss the application. 12 In view of my conclusions, the order of the Court will be that the application is dismissed with costs and the name of the first respondent will be changed to the Minister for Immigration and Citizenship. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

notice of motion to set aside order dismissing appeal where appellant failed to appear sufficiency of explanation for failure to appear whether arguable case procedure

By virtue of s 49(6)(b) of the Act the applicant is an eligible person who may bring proceedings in respect of a contravention of a civil penalty provision of the Act . 2 The applicant relies on his own affidavit sworn on 1 March 2006 and the affidavits of Bryan Thomas Palmer sworn 1 March 2006; Anthony John Goss sworn 1 March 2006, 2 March 2006 and 6 March 2006; Michael John McKenzie sworn 3 March 2006; Gregory Raymond Moresi sworn 6 March 2006; and Ryan Anthony McMahon sworn 6 March 2006. The respondents did not file any affidavits in response. 3 The respondents took objection to parts of the first and second affidavit of Mr Goss (including exhibit PG 1), part of Mr Palmer's affidavit, and part of Mr McMahon's affidavit. For the reasons stated in argument, to the extent that paragraph 15 of Mr McMahon's affidavit is admissible under s 75 of the Evidence Act 1995 (Cth), I would admit it and paragraph 6 of Mr Goss's affidavit of 2 March 2006. I would not otherwise admit these paragraphs. I would uphold all the respondents' counsel's objections to Mr Goss's affidavit of 1 March 2006 and to paragraph 7 of his affidavit of 2 March 2006, as well as paragraph 10 of Mr Palmer's affidavit of 1 March 2006. I note that Mr Moresi also deposed to the matter referred to by Mr Palmer in paragraph 10 of his affidavit. 4 Counsel for the applicant submits that, by reason of the matters deposed to in these affidavits, there is a serious question to be tried that the respondents have engaged in contraventions of ss 38 and 43 of the Act ; and that the balance of convenience favours the grant of the injunctions sought. Counsel for the respondents responded that the evidence did not establish the applicant's case and, in any event, the injunctive relief sought was too wide. TJV employed construction workers through another company called Melbourne Transit Pty Ltd ("Melbourne Transit") under a certified agreement made with the first respondent ("the union"). The sole director of TJV and Melbourne Transit is Mr Goss. • When work began on the site in December 2003, the union-appointed shop steward was Frank Villa. In February 2004, a union representative told Mr Goss that Melbourne Transit should appoint Ms Roslyn Singleton as the union-recognised shop steward or O H & S officer. Melbourne Transit subsequently employed Ms Singleton. • In August 2004, Bob Mates, who is one of the union's organisers, told Mr Goss that it would be "in Melbourne Transit's interest" to employ Shaun O'Hara as the shop steward. Mr O'Hara was subsequently hired by Melbourne Transit as a labourer, but he left the site in December 2004 for health reasons. • In January 2005, Mr Mates told Mr Goss it would be "in Melbourne Transit's best interests" to employ Jason Deans as the replacement shop steward. Melbourne Transit later hired Mr Deans. • On 22 December 2005, Melbourne Transit made 38 construction employees redundant. 26 of them had worked at the site. Melbourne Transit made redundancy payments. Melbourne Transit retained 23 workers, who until 25 January 2006 worked on small jobs for it, other than at the site. The site was closed over part of December 2005 and January 2006. • ACN 117 918 064 Pty Ltd, trading as Hardcorp, was incorporated on 17 January 2006. Mr Goss is also the sole director of this company. • In late January 2006, TJV contracted with Hardcorp to perform construction work on the site, predominantly for the supply of labour. • On 25 January 2006, Melbourne Transit made its remaining 23 employees redundant but Hardcorp has employed them since this date. Melbourne Transit went into voluntary administration on 25 January 2006. • 2 Hardcorp employees commenced work at the site in late January. The site workforce is now about 20. Hardcorp has paid employees at the site in accordance with the rates of the certified agreement made with Melbourne Transit, which went into liquidation on 23 February 2006. • On 15 February 2006, Mr Goss invited Mr Mates to a meeting, during which Mr Goss told Mr Mates that the project at the site was recommencing. Mr Mates told Mr Goss that he wanted the former employees of Melbourne Transit to be re-employed on the project, but Mr Goss replied that this would not be economically possible because the size of the required workforce was unknown at that stage. Mr Mates also told Mr Goss that he wanted the union's former shop steward and O H &S officer as well as the FEDFA shop steward (Aengus O'Donnell) to be employed by Hardcorp and reappointed as shop stewards and O H & S officer. Mr Mates said that he would not accept anything less. Mr Goss replied that there was no need for Hardcorp to employ a FEDFA shop steward because Hardcorp would not be employing a crane crew. Mr Goss said that, initially, Hardcorp was going to hire a crane with staff and then have a crane company use their manpower on TJV's crane. Mr Goss and Mr Mates did not agree on shop stewards for the site. Mr Mates told Mr Goss at the end of the meeting that the site was "not going to happen" without his people on the site. • On 16 February 2006, the workers at the site elected Robert Van Senten as their O H & S representative and shop steward. • On 17 February 2006, at the request of the union, Mr Goss, Bryan Palmer and Michael Malbourne attended the union's offices. Mr Palmer was Hardcorp's site supervisor and Mr Malbourne was the finance executive of the relevant group of companies. They met with Mr Mates and a FEDFA organiser called Chris. • According to Mr Goss, Mr Mates told the Hardcorp people that there were two issues: (1) the re-employment of his people; and (2) the payment of subcontractors who had previously worked for Melbourne Transit. According to Mr Goss, he said: (1) that he viewed the debt as owed by Melbourne Transit and not Hardcorp but he would nevertheless attempt to have these debts paid at some time in the future; and (2) he was not prepared to engage more employees because of the workforce size required to recommence the project was unknown. Also according to Mr Goss, Mr Mates told Mr Goss that if he did not agree to employ the shop steward and the OH & S representative that had been previously employed at the site, then he (Mr Mates) would ensure that the project would never recommence and that he (Mr Mates) would cause trouble at the site. According to Mr Goss, Mr Mates also said that there would be a picket line of subcontractors organised at the site. Mr Palmer's account of this meeting did not corroborate Mr Goss's account in important particulars. Mr Palmer said that Mr Goss had stated that TJV now employs 23 employees and that this number of employees was the only way that the job could be continued, and that he could not re-employ all of the employees that were previously employed on the site. Mr Palmer added that Mr Goss explained that it would not be financially possible to re-employ all the previous employees and there was some further discussion about the position of shop steward and O H & S representative on site but at the end of the meeting this was not resolved. Mr Palmer said nothing about any threats from Mr Mates. • On the next working day, which was 21 February 2006, a crane crew and a crane from Independent Cranes Pty Ltd ("Independent Cranes") attended the site. The crane crew began setting up the crane for work. According to Mr Palmer, at about the same time, he was told by men at the site that they heard Mr Mates tell the crane crew to shut down the crane. Accompanied by others, including the site supervisor, Mr Palmer went to ask Mr Mates why he had shut down the crane. According to Mr Palmer, Mr Mates said that he had done this because there was no shop steward or O H & S representative on site. When Mr Palmer told Mr Mates that this was not so, Mr Mates replied with words to the effect of "No you don't and I have shut down your crane. You can write that down. " Mr Palmer and another man reiterated that there was a shop steward and O H & S representative on site and Mr Mates replied "I have sent the crane crew away". Mr Palmer produced diary notes of this conversation. Mr McMahon and Mr Moresi corroborated his account. Mr Palmer telephoned Mr Goss, who contacted the offices of Independent Cranes. A representative of Independent Cranes told Mr Goss that the crane had left because the union had directed the crew to go and, if Independent Cranes wanted to continue to work in the industry, they had to withdraw from the site. Mr McMahon also deposed that a representative of Independent Cranes told him that "he was removing the crane ... [and] if he did not follow instructions, Independent Cranes would not be able to work on other sites". Mr Goss caused inquiries to be made of other crane companies. These inquiries did not result in a crane being made available at the site. Mr McMahon deposed that he called 8 crane hire companies that day and that all said that they had no crane available. Mr McMahon said that he asked one company (Sergi Cranes Pty Ltd) whether the union had contacted it and was told that it had not. Mr McMahon said that Campbell Cranes agreed to send a manager to inspect the site the following day. • On 22 February 2006, there was a picket line constituted by about 20 (according to Mr Palmer) or 30 (according to Mr Goss) men in front of the south end of the site. According to Mr Goss, the picket line included a former union shop steward. The picket line dispersed at about 11:00 am. In the meantime, in view of the picket line and Hardcorp's inability to hire a crane, Mr Palmer cancelled deliveries to the site. • On the same day, Barry Campbell of Campbell Cranes attended the site for assessment purposes. Mr Campbell told Mr Goss that he was intimidated by the picket line and he did not want to run the risk of his crane being damaged. Mr Campbell told him that he was fearful of the site as he did not want his staff to be put in the situation of having to deal with the picketers. Mr McMahon also deposed that Mr Campbell said that "he was not willing to get involved on the ... site" and that when leaving, Mr Campbell "asked if there was a back entrance because he was scared that the picketers would see someone with a Campbell Cranes polo shirt had been on site". Other efforts to obtain a crane were unsuccessful. Mr McMahon deposed that each time he called a crane company he told them that "there was a picket line in front of the site and that if you came on site there may be some pressure from the CFMEU". Two companies indicated that they wanted no further involvement after they were told about the picket line, whilst the other three said that they had no available cranes. • On 23 February 2006, the picket line was about 10 (Mr Palmer) or 40 (Mr Goss) or 30-35 (Mr McMahon) including a former FEDFA shop steward. The line dispersed at about 11am. Mr McMahon said that he saw Mr Mates and others outside a shop about 50 metres from the site. Mr Palmer said in his affidavit that, on account of events at the time, he was "feeling uneasy and was concerned that the situation could escalate into violence". According to Mr Goss, he contacted Mr Mates by telephone and told him that certain behaviour was inappropriate and, a short time later, Mr Palmer told Mr Goss that this behaviour had ceased. Mr McMahon also said that he continued to call crane companies that day and told each company he called about "the pickets and the union difficulties". The crane companies' responses were much the same as the day before and once again his efforts failed. • On 24 February 2006, the picketers were again at the front of the site, although they were less in number (about 7 to 10). Mr McMahon's evidence was that he saw Mr Mates, Mr O'Donnell and a FEDFA organiser whose name he could not recall at the front of the corner shop. They dispersed at about 10:30-11am. • On 27 February 2006, the picket remained. Mr McMahon said that some people from the picket line had parked their cars in the drive way entrance. On this day, the applicant faxed a request to the union for an interview with Mr Mates in respect of any grievances he may have against Hardcorp and the applicant's investigation of possible contraventions of the Act . The applicant received no response. • On 28 February 2006, the picket (of about 10-12) remained. Mr McMahon's evidence was that he arrived at the site at about 6:50 am and "placed some water barriers and barrier tape in the work zone to about five metres directly in front of the site". He said that "[w]hen the picketers arrived, one of the picketers ripped the tape off, moved the water barriers and drove into the work zone area". Also on this day, the union brought proceedings before the Australian Industrial Relations Commission seeking an order that Hardcorp is a "successor" employer to Melbourne Transit pursuant to s 170MB of the Workplace Relations Act 1996 (Cth). The Commission has adjourned the matter. • On 1 March 2006, the union responded to the applicant's solicitors' letter of the same date denying any wrongdoing and declining to give the undertakings sought by the applicant. There were also about 10-12 people in the picket line. Mr McMahon said that he again sought to hire a crane and crew, including from Independent Cranes, without success. • On 2 March 2006, the site supervisor told Mr Goss that he heard one of the picketers on a mega-phone, state that the picket line was to make sure that it stopped all deliveries of concrete panels coming onto the site and that the picketers would remain at the site all weekend to make sure this did not happen. Also on this day, further attempts to obtain a crane proved unsuccessful. Mr McMahon booked a crane with a crane company (Sergi Cranes) for the next day, without mentioning "the picket line or union troubles". He cancelled the crane booking with this company on the morning of the next day. At that time there were 3 people across the road wearing hardhats who made rude gestures at me. I also saw the Second Respondent, Bob Mates, Aengus O'Donnell (former Shop Steward for the First Respondent on the Mount Street site) and a CFMEU (FEDFA) Organiser by the name of Chris, sitting together in a café near the site. I believed that, if a crane did turn up from Sergi Cranes, there was no way it would cross the picket line. At this point, we were also commencing retrenchments .... For these reasons, even though I had very little confidence that Sergi Cranes would attend with a crane at 11:00 am, I told McMahon to cancel the booking with Sergi Cranes. Mr McKenzie also said that Mr Goss told him that he saw Mr Mates, a former union shop steward, and a FEDFA organiser sitting together in a café near the site. They have their own CFMEU-FEDFA award covering qualification, pay rates and other terms and conditions of employment. Moreover, Mr Goss deposed that the construction work conducted by Hardcorp and TJV at the construction site is covered by the National Building and Construction Industry Award 2000. 7 Mr Goss also deposed that TJV was losing approximately $50,000 per day for each day that it was unable to obtain a crane and crane crew to work at the site. He said that the project could not progress without a crane and a crane crew on site. There was also potential exposure to TJV's trading bank of $350,000. There were about 24 Hardcorp employees, 10 subcontractors and 7 TJV staff who would lose their jobs if the project did not continue. There was a further risk to the subcontractors to which money was already owed and the prospects of the project continuing were being jeopardised. Mr Goss also deposed that he had been informed that the project's funding bank was considering withdrawing funding. If this were to occur TJV's losses could be in the order of up to $3 million. In his further supplementary affidavit, Mr Goss deposed to the fact that Hardcorp had commenced retrenchments, which would continue. It is not suggested that there was any "excluded action" involved in the present case. For the reasons that appear below, it is unnecessary to set out these lengthy definitions here. 10 Section 39(1) of the Act provides that if, on application by the ABC Commissioner or any other person, an appropriate court is satisfied that unlawful industrial action is occurring or threatened, impending or probable, then the court may grant an injunction in such terms as the court considers appropriate. Section 39(2) permits the court to grant an interim injunction. The Federal Court of Australia is an appropriate court: see s 39(4). 12 Part 1 of Ch 7 of the Act concerns the contravention of civil penalty provisions, such as s 43. Pursuant to s 49 , on application by, amongst others, an ABC inspector, this court may make certain orders in relation to a person who has contravened a civil penalty provision. This may include an injunction or interim injunction: see s 49(1) and s 49(3)(a). For these purposes, a person who is involved in a contravention of a civil penalty provision is treated as having contravened that provision. The expression "involved in" includes a person who has been knowingly concerned in or party to the contravention: see s 48. Mr Mates reiterated this and other demands at the meeting on 17 February 2006. On both occasions, so the applicant said, Mr Mates unlawfully threatened that he would cause trouble at the site such as to prevent the project recommencing. (2) Thereafter, so the applicants' case went, Mr Mates engaged in unlawful conduct to coerce Hardcorp to employ these people at the site in that: (a) on 21 February 2006, Mr Mates told the Independent Cranes crane crew to vacate the site and telephoned Independent Cranes to tell the company to stay away from the site; (b) on 22 February and thereafter, Mr Mates encouraged or organised a picket line for the purpose of coercing Hardcorp to employ the relevant people, discouraging any crane crew from coming onto the site, and intimidating other workers on the site; and (c) from at least 21 February 2006, contacting crane operators in the industry to ensure that they did not come on the site. The applicant's counsel also said that there was evidence that Mr Mates' preferred shop steward (Mr O'Donnell) was in attendance at the picket and that Mr Mates himself was seen near the picket with another organiser. 15 By reason of these matters, contrary to s 43 , Mr Mates and the union have, so the applicant submitted, taken action with the intent to coerce Hardcorp to employ certain people as building employees; and to allocate or designate them to have the particular responsibilities, or duties of an O H & S officer. It was sufficient if this unlawful reason was one of the operative reasons for the conduct, whether or not it was a substantial reason. 16 The applicant also submitted that the conduct of the respondents constitutes "building industrial action" as defined in s 36(1) of the Act . The respondents were, so the applicant submitted, engaging in a course of conduct in order to prevent any crane coming on the site, as well as associated construction work. As such this was "building industrial action" because: (a) it involves the adoption of a practice in relation to building work, the result of which is a restriction or limitation on, or a delay in, the performance of work; alternatively, it involves a ban, limitation or restriction on the performance of building work, or on the acceptance of or offering for building work; and (b) the work involved is to be in accordance with the terms and conditions prescribed by an industrial instrument, being either the relevant award or certified agreement. 17 Further, the action was, so the applicant contended, "constitutionally-connected action" and "industrially-motivated" as defined in s 36(1) of the Act . It was "industrially-motivated", so the applicant said, because it was motivated by one or more of the purposes of advancing the industrial objectives of an industrial association and disrupting the performance of work. Accordingly, the respondents have, so the applicants alleged, engaged in unlawful industrial action contrary to s 38 of the Act . 18 The applicant also contended that each of the respondents was liable for a contravention of the Act "by reason of aiding and abetting, counselling or procuring the contravention of the other respondent or, alternatively, being directly or indirectly knowingly concerned in or a party to such contravention" as provided in s 48 of the Act . Further, the union was, so the applicant submitted, liable for the conduct of Mr Mates because "[b]oth at common law and pursuant to the ... Act , the conduct of Mates as an organiser for the [union] is taken to be conduct of the [union]". (b) Mr Goss gave a fanciful explanation for cancelling the crane hired for 3 March 2006. (c) There was no evidence that anyone had been prevented from entering the site. (d) The employees of Independent Cranes left the site at the instruction of their employer. (e) There was insufficient evidence to justify the assertion that the picket line was a CFMEU picket line. Mr Goss's evidence was that Mr Mates had said that there would be a picket line of subcontractors organised at the site and he did not say that the union would organise it. There was no evidence of any CFMEU presence on the picket line. The evidence was that the signs displayed on the picket referred to the need for Mr Goss to pay his debts. (f) The most that the evidence shows is that Mr Mates directed the Independent Cranes crane crew to leave the site on 21 February 2006, although the crew ultimately left at the direction of their employer. Counsel for the respondents also contended that the evidence did not disclose that, if there were such action, it was "industrially motivated" within the meaning of s 36(1). The "industrial objective" that the applicant asserted came, so the respondents said, within s 43 and not within s 37 , because s 43 was the specific provision dealing with this kind of objective, whereas s 37 was of its nature a general provision. The provisions should not, the respondents said, be construed as overlapping. Moreover, the picket per se could not constitute a ban for relevant purposes. 21 In relation to s 43 of the Act , the respondent submitted that, for conduct to amount to coercion, it must be compulsive in the sense that the pressure brought to bear by the conduct from a practical perspective negates choice and is unlawful, illegitimate or unconscionable. The respondents' counsel submitted that there was no evidence that any action had been taken against anyone in this case. Save, perhaps, for Mr Mates' direction to the Independent Crane crew, there was no coercive conduct, or threat of coercive conduct, against any crane operator. Counsel noted that pickets per se were not industrial action nor unlawful and there was no evidence that anyone was being stopped from going onto the site. The evidence was, he said, consistent with the fact that crane operators had made a commercial decision not to work on the site. Further, the evidence did not establish any CFMEU presence on the picket; but rather the evidence was consistent with the picket being a protest picket by subcontractors. They were advertising the fact that the builder (Mr Goss through one or other of his companies) did not pay those who worked on the site. The evidence was, so counsel said, that the builders' employees were able to go on and off the site. Moreover, the evidence was that Mr Goss himself cancelled a crane booked for the site. These two issues are not necessarily considered in isolation from one another. Thus, an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim, which nevertheless raises "a serious question be tried", may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: see Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 (" Mobileworld ") at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. This latter consideration assists in the resolution of the present question. Further, the threshold for "a serious question to be tried" is not particularly onerous. However, it must be remembered that any such conclusion will be provisional, and by no means necessarily the same as that which is subsequently reached at the final hearing. The degree to which a court is prepared to investigate disputes of fact depends on their difficulty and on the other circumstances in question, and particularly on the extent of urgency or prospective hardship involved: ICF Spry, The Principles of Equitable Remedies (6 th ed, 2001) ("Spry") at 466.". Further, for present purposes, I accept that Mr Mates' conduct at the union's offices and at the site is taken to be the conduct of the union: see s 69(1)(b) of the Act . The relevant action, as shown in the evidence currently before the Court, is, first, Mr Mates' direction to the crane crew, on 21 February 2006, to shut down the crane and leave the site. Whilst the evidence, for present purposes, was that the crew ultimately left at the direction of Independent Cranes, this evidence also showed that Independent Cranes made this direction only because of Mr Mates' direction to its crew. Secondly, there is sufficient shown, for present purposes, to raise a serious question as to whether the union orchestrated the picket line to discourage crane operators and their crew from coming onto the site, or otherwise to cause trouble on the site and prevent the recommencement of the project. Although Mr Mates was reported (by Mr Goss) to have said no more than that "there would be a picket line of subcontractors organised at the site", this reported statement must be read in light of Mr Goss's evidence that, at the meeting on 17 February 2006 at the union's offices, Mr Mates also reportedly said that he would ensure that the project would never recommence and that he would cause trouble at the site. Moreover, there was also evidence (from Mr Goss) that Mr Mates made a similar threat in conversation with Mr Goss on 15 February 2006. It is true, as counsel for the respondents noted, that (as Mr Mates apparently foreshadowed) subcontractors formed the picket, although apparantly so did a former union shop steward or stewards. Further, there was evidence that Mr Mates and other union officers were in the vicinity of the picket on 23 and 24 February 2006 and 3 March 2006 and that, on one occasion, following a conversation between Mr Goss and Mr Mates, the conduct of the picketers was modified. These latter considerations are not, of course, especially compelling on their own. Their significance, for present purposes, is that they tend to support the applicant's claim that the union orchestrated the picket as a statement to crane operators and their crew that there was a ban on their coming onto the site. 25 Further, for present purposes, there was some evidence that one crane hire company (Campbell Cranes) specifically declined to come onto the site because of the picket, and some other companies apparently declined because of the picket or because they did not want trouble with the union. It is true, as the respondents' counsel said, that there was no evidence that anyone was actually stopped from going onto the site, but, in this connection, it is relevant that there was also evidence that virtually all crane drivers who operate cranes of the relevant size were members of the FEDFA division of the union and therefore unlikely to come onto the site to work if the picket was perceived to be the union's. There was, moreover, some evidence that, on at least one occasion, picketers had parked their cars in the driveway entrance to the site and, on another occasion, a member of the picket drove into the work zone area after removing barriers and tape to prevent entry. 26 The evidence to which I have referred, taken with the evidence as to what Mr Mates said to Mr Goss on 15 February 2006, and to Mr Goss and others at the meeting on 17 February 2006, is sufficient to establish that there is a serious question to be tried as to whether the relevant action was taken with intent to coerce Hardcorp (1) to employ as building employees people who had been previously employed at the site and, in particular, previously employed as shop stewards and an O H & S officer; and (2) to allocate one of them to have the particular responsibilities of an O H & S officer representative. For these interlocutory purposes, the evidence is that, in these conversations, Mr Mates stated that re-employment was an issue for the union and in this connection made threats, which it seems, became a reality after 21 February 2006 following Mr Goss's rejection of Mr Mates' position. 27 In reaching the conclusion that it is appropriate to grant interlocutory relief, I have also had regard to the strength of the balance of convenience factors militating in favour of the grant of an interlocutory injunction. The evidence in support of the applicant's claim that there is a serious question to be tried as to whether there has been a contravention of s 43 of the Act does not make out a particularly strong case. I accept the respondents' counsel's submission that ultimately there was little to support the applicant's submission that the union had contacted any crane operator to discourage its attendance at the site; and that Mr Goss's explanation for cancelling the booking of a Sergi crane on 3 March 2006 was unconvincing. I note that the respondents did not adduce any evidence from Mr Mates on this interlocutory application. There remains the real possibility that the evidence at trial may establish that the respondents did not in fact take any relevant action with respect to the picket and that Mr Goss's failure to pay subcontractors at the site accounts for what has occurred. 28 Having regard to the evidence of Mr Goss and to the fact that, on the respondents' case, the grant of appropriate interlocutory relief would not occasion them any injury, the balance of convenience is plainly in favour of the grant of relief. On the evidence before me, the union's alleged conduct is causing losses to TJV of around $50,000 per day, with a risk that the project might not proceed at all, occasioning further significant damage of up to $3 million. Further, if the project were not to proceed, then the employment prospects of 24 of Hardcorp's employees, 10 sub-contractors and 7 of TJV's staff would be jeopardised. According to Mr Goss, retrenchments at the site have already commenced and will continue without this grant of relief. The conduct in question does not apparently involve any possibility of protected action. 29 Accordingly I would grant interim injunctive relief, pursuant to s 49(3)(a) of the Act , although in more limited terms than that sought by the applicant. Pursuant to s 76 of the Act , it is not open to the court to require that the applicant give an undertaking as to damages as a condition of granting this interim injunction. 30 Since Mr Mates is a union officer, it is sufficient for present purposes that injunctive relief be granted against the union. It is unnecessary for me to consider the applicant's submission that the respondents had also engaged in unlawful building industrial action under 38 of the Act , or whether Mr Mates is himself liable pursuant to s 48(2) of the Act . I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

application for interlocutory injunction building and construction industry improvement act 2005 (cth), ss 38 , 43 trade union alleged to have prevented cranes from accessing construction site whether serious question to be tried balance of convenience scope of injunction interlocutory relief granted industrial relations

The Tribunal by its decision affirmed the decision of the Minister's delegate to reject the appellant's application for a Protection Visa under the provisions of the Migration Act 1958 (Cth) ("the Migration Act "). The Tribunal's decision of 6 October 2006 is the second decision of the Tribunal, differently constituted from the first, in the exercise or purported exercise of the Tribunal's statutory review function. The first decision made on 30 March 2005 and published on 19 April 2005 affirming the decision of the Minister's delegate was set aside by the Federal Magistrates Court by consent on 29 March 2006 and was remitted to the Tribunal to be determined according to law. The appellant sought to quash a second decision of the Tribunal on three grounds. They were that the second Tribunal had not been reconstituted according to law having regard to the relevant provisions of the Migration Act ; that the Tribunal failed to discharge its statutory review function in that it failed to consider whether the appellant's so called "residual motive" in seeking protection gave rise to a well-founded fear of persecution; and, that the Tribunal was affected by apprehended bias. The appellant was unsuccessful on all three grounds. The appellant filed a Notice of Appeal before this Court on 11 July 2008 which raised three grounds of appeal. On the hearing of the appeal, the appellant represented by Mr Newman of Newman & Associates, sought to abandon the prosecution of any of those grounds and sought leave to amend the Notice of Appeal to rely upon one new ground of appeal. The Minister opposes the application for leave to amend the notice of appeal. The Notice of Appeal filed on 11 July 2008 is a handwritten notice filed by the appellant under her own hand. She does not appear to have been represented by a lawyer in preparing and filing that document. The appellant was initially represented in the Federal Magistrates Court proceedings by Mr Newman. For reasons which do not need to be repeated here, the hearing of the proceeding before the Federal Magistrates Court was adjourned. Mr Turner of Parish Patience Immigration Lawyers appeared for the appellant on the adjournment application and later acted for her in the conduct of the hearing. Mr Newman now acts for the appellant in the appeal. The appellant as advised by Mr Newman now seeks to agitate the new and only ground of appeal. The Minister contends that the subject matter of the new ground was not argued in the Court below. It could have been argued. The appellant was represented. Nevertheless, Mr Kennett on behalf of the Minister has prepared written submissions addressing the new ground. Having regard to the history of the matter, it seems to me that the interests of justice are served by granting leave to amend the Notice of Appeal so as to enable the appellant to argue the ground of appeal now thought, on advice, to be meritorious. Accordingly, leave to amend is granted. The appellant is a citizen of Nepal born in 1970 in the town of Khanigawn in the area of Parbat, Nepal. She was a member of the Brahmin caste and was brought up within Nepal's Hindu community and Hindu culture. She married in 1987. She is the mother of two sons born in 1990 and 1993 both of whom remain in Nepal. The appellant arrived in Australia on 19 December 2003 in reliance on a visitor's visa issued in Hong Kong. She applied for a Protection Visa on 7 January 2004. The appellant claims to hold a well-founded fear of persecution should she return to Nepal, due to the political opinions she holds and expresses as a supporter of the ideology of the Maoist movement within the Nepalese Communist Party; the Christian religion she embraces and feels compelled to proselytize; her abandonment of Hindu beliefs and traditions in favour of the Christian faith; and the difficult social position she would endure in Nepal as a widow. She contended that due to these considerations she would be in physical danger from the authorities in Nepal, individuals within the Maoist movement in Nepal, Hindu nationalists, her father as he is a Brahmin shamed by his daughter's conversion to Christianity and, as to her social status in Nepal, by some members of the wider community in that country. The factual content of these claims is contained in the appellant's handwritten answers to questions in the application form for the visa and statutory declarations she swore on 20 February 2004, 9 June 2004, 10 January 2005 and 17 March 2005. The appellant also gave oral evidence at the first Tribunal hearing. She also swore a further consolidating statutory declaration on 2 June 2006 and gave further oral evidence before the second Tribunal at a hearing on 19 June 2006. In her consolidating statutory declaration sworn on 2 June 2006, the appellant addressed a number of inconsistencies in her oral evidence given to the first Tribunal hearing as compared with earlier written answers and statutory declarations put before the Tribunal. The appellant said those inconsistencies were due to the difficulties she experienced in communicating with a Tamil migration agent who had a limited understanding of her Hindi language. She said her English language skills were not very good and to the extent that any earlier documents contained material inconsistent with her declaration of 2 June 2006, those documents were incorrect. The central factual contentions of the appellant of importance were these. The appellant's husband had been a member of the Communist Party of Nepal, a very active member of a Maoist group within that party and a Maoist District Commander for the region of Parbat. As a result, the appellant's husband was always hiding from the Nepalese authorities, would visit his wife and children every three, six or eight months and would come and go in secret. He would not tell her any details of his political activities. The appellant contended that her husband had been killed in a clash between Maoist activists and the Nepalese army. There was confusion in the appellant's material before the Tribunal as to the month and year of her husband's death. The appellant contended that she was sympathetic to her husband's Maoist ideals although she was not a person who engaged in acts of violence. She said she supported the Maoists by distributing literature and medicines amongst the people. She contended that before her husband died, the army and police used to come to her house and question her about her husband. They would do so two or three times a month to search the house. A few months before her husband died, a number of policemen took her to a building for questioning. She was threatened with rape, beaten and raped, although she could not remember exactly what had happened to her during that ordeal. She said that she was knocked unconscious. During a period of approximately one or two years before her husband's death, there were many incidents when members of the police or the army interrogated her about her husband's whereabouts. Apart from the interrogation and rape or suspected rape just mentioned, the appellant contended before the second Tribunal in her oral evidence that policemen used to come to her house when her husband was away engaged in Maoist activities. These men used to demand information from her under threat of rape. She said that when she could not tell them where her husband was since she did not know, they would rape her. In her oral evidence she said that these events occurred over a four year period prior to her husband's death. The circumstances of her husband's death in a battle with the Nepalese army, and seeing her husband's body, were traumatic events for her. After her husband's death, she was helped by Maoist sympathisers, continued to support Maoist principles and continued to assist Maoist sympathisers in the distribution of pamphlets and medicines. She contended that in 1998 after her husband's death, her father-in-law took steps to obtain a passport for her to leave Nepal. The passport was issued on 7 September 1998. She contended that one day in November 1999 her father-in-law told her to go with him to Kathmandu Airport. She was given a passport and ticket and told she was to fly to Hong Kong to be met by a person who would employ her in domestic service. She worked for that person and his family for two years and then another family. The second employer obtained a renewal of the appellant's passport, that is, a new passport on 7 March 2003. The appellant came to Australia with that family on 19 December 2003, fled from her employer and applied for a Protection Visa on 7 January 2004. These events were examined closely and in great detail by the Tribunal as the appellant initially said she left Nepal from Kathmandu in August 2002 and although each passport was issued after her husband's death, each passport nominated her husband as her next-of-kin. In support of these contentions, the appellant relied on four witness statements. She also relied on a letter addressed "To Whom it May Concern" under the letterhead of the "Human Rights Educational Radio Audience Club (Rilek-Nepal) District Section --- Chitwan". In the first statement (in order of the Appeal Book) Bhim Kharel says that he came to Australia on 5 June 1996, is a permanent resident and has known the appellant and her husband for over 15 years. He asserts that because the appellant and her husband supported Maoist political activities in Nepal, the appellant's husband was killed by Nepalese authorities and the appellant was detained on a number of occasions. He says that she was denied employment and ostracised by the society. He says he grew up in the same village as the appellant and her husband. The second statement is by Rita Kharel of the same address as Bhim Kharel. She says she knew the appellant and her family in Nepal. She says that the appellant has a psychological fear that if she returns to Nepal she will be arrested and tortured due to her membership of a Maoist organisation. She says the appellant may commit suicide. The third statement is by Choodamani Pramod. He says he has seen many incidents in Nepal during clashes between the Nepalese army and Maoist groups. He says he knew of the appellant and her family in his district. He says, "We all used to move from one place to another place". He says he has a strong belief the appellant would be detained by Nepalese authorities. The fourth statement is by Grishma Kharel. She says that she knew the appellant and her husband from her village in Nepal. She says the appellant's husband was very popular, helped people and was generally known as a leader. She sets out her beliefs about particular problems in Nepal and her belief that the appellant would be isolated from Nepalese society due to her and her husband's past activities. The witnesses also gave oral testimony. A medical report was also put in evidence that addressed the appellant's physical and emotional condition and referred to certain burn scars on the appellant's back which she claimed she sustained during an event of torture. The fifth document is the letter previously mentioned. The author says that based on information supplied to him (or the agency) the appellant's husband was an active member of a Maoist organisation and was killed in June 1998 in a battle between the Nepalese army and Maoist rebels. The appellant also put before the Tribunal a statement from a social worker associated with the Jesus Family Centre which the appellant regularly attends as part of her Christian devotions. A medical report dated 2 June 2006 concerning her condition was also put before the Tribunal. At AB282 (p 8 of the Tribunal's reasons), the Tribunal describes the evidence of Bhim Kharel, Choodamani Pramod and Grishma Kharel. The evidence of Bhim Kharel is also noted at AB286 (p 12 of the Tribunal's reasons). The Human Rights letter is addressed at AB287 (p 13 of the Tribunal's reasons). The Tribunal in very extensive reasons extending over 33 pages, analysed each of the claims made by the appellant and the evolution of those claims through the course of the appellant's written answers, statutory declarations, oral evidence and responses to letters from the Tribunal. Plainly enough, the Tribunal was concerned about fundamental inconsistencies in the evidence and statements made to the Tribunal by the appellant over time. Although it is not necessary to recite in these reasons each of the findings made by the Tribunal arising out of its perception of important inconsistencies, some of the findings ought to be mentioned. ... The Tribunal is of the view that the Applicant's claims about the traumatic nature of the torture she suffered do not satisfactorily explain discrepancies in her evidence as to when the pattern of torture began. She claimed as recently as 2 June 2006 that there was one "possible" instance of rape prior to her husband's death but that she was unconscious and could not tell for sure. Only a few weeks later she was citing a four-year history of rape. The Tribunal finds it cannot rely on claims about the Applicant's husband having died prior to the Applicant's application for a passport, let alone in the circumstances claimed. The Tribunal gives weight to the entry in the Applicant's passport attesting to her husband being alive at least at the time of the application for the passport (AB304). The Tribunal has duly considered material such as the 2 June 2006 medical report and the Jesus Family Centre's social worker's statement but finds that it cannot give these such weight as can help resolve the Applicant's credibility problems in relation to her claims about abuse in Nepal (AB304). This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non authentic, or forged, document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis (emphasis added by the Full Federal Court). Firstly, the Tribunal has "duly considered" the information from the appellant's witnesses relating to the appellant's engagement with Maoist groups or her husband's engagement with such groups and has duly considered information from these witnesses relating to the "consequences of such connections". Secondly, the nature and degree of the credibility problems the Tribunal has with the evidence of the appellant is such that the witness statements cannot be redemptive of the poisoned well of credibility, that is, the Tribunal cannot give the statements such weight "as can help resolve the appellant's credibility problems in relation to her claims about abuse in Nepal". Thirdly, guidance in the approach to the utility of corroborative statements can be found in the decision of Tamberlin J in SZANI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1298 and the reference in that decision to the reasons of the Full Court in WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 , which suggest to the Tribunal that where there is a finding by the Tribunal that the evidence of the appellant is fundamentally "discredited", any purportedly corroborative material presented in support of a discredited version of events, may be discarded. Fourthly, although the witness statements ought not to be discarded from due consideration, no weight should be attached to them in resolving the Tribunal's concern as to the appellant's credit. The appellant by her submissions made by Mr Newman, accepts that once a witness is found by the Tribunal to lack credibility, any documents that the witness tenders in corroboration of the primary evidence "may themselves be suspect". However, oral corroborative evidence from a supporting witness is, it is said, in "a different class altogether". Before oral evidence can be rejected it must be found to be "flawed or tainted" in some way. Unless the evidence is assessed and reasons given for its rejection, the Tribunal has failed, it is said, to discharge its review function and has failed to properly exercise its jurisdiction. In this case, the Tribunal has considered the evidence of the witnesses called by the appellant and has concluded that the content of the evidence does not overcome the Tribunal's conclusions about the reliability of the primary evidence of the appellant. In SZANI v MIMIA , Tamberlin J concluded that the Tribunal's failure to make "any reference" [22] to the documents in question and the Tribunal's failure "to refer to, consider, or give reasons for rejection of the documents" [25] constituted jurisdictional error. In other words, the Tribunal had "ignored" relevant material in the sense contemplated by McHugh, Gummow and Hayne JJ in Minister for Immigration v Yusuf (2001) 206 CLR 223 at [82]. That is not this case. The Tribunal seems to have cited SZANI to illustrate the quoted reference to WAEJ v MIMIA . In that case, the Full Court, Lee, Hill and Marshall JJ at [52] noted the class of case where an appellant's evidence is so discredited that corroborative evidence presented in support of the primary claims "could be discarded without further analysis". The essence of the complaint is that the Tribunal failed to consider the evidence as a whole, but first considered, and disbelieved, the evidence of the applicant/appellant, without taking account of the corroboration, and then considered and rejected the corroboration because of the rejection of the evidence of the applicant/appellant. I do not accept that this is a fair criticism of the Tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. I am not persuaded that this criticism is justified. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processors (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. In this case, the Tribunal comprehensively examined the primary case first put by the appellant. The Tribunal considered the evidence of the witnesses called by the appellant and reached the conclusions already identified. The Tribunal did not simply ignore the evidence in the sense contemplated in Minister for Immigration v Yusuf (supra). The point of principle referred to in the reasoning of the Chief Justice in Applicant S20/2002 remains determinative, whether the particular evidence is a document or a statutory declaration or embraces oral evidence. The appellant says that SZIEW v Minister for Immigration and Citizenship 101 ALD 295 per Madgwick J is authority for the proposition that a failure by the Tribunal to accord separate deliberative reasons for the rejection of the evidence of each witness is a failure to exercise jurisdiction. In that case, Madgwick J concluded that the Tribunal wrongly accorded the evidence of a witness "little weight" for the sole reason that the Tribunal had no opportunity to test the claims made by a witness that her relative had been captured and had heard certain things about the particular applicant's husband. The case also concerned events in Nepal. Having regard to the inquisitorial role of the Tribunal and its statutory function, the rejection of the evidence of a witness as to the statements made to the witness by her relative, on the sole ground identified by the Tribunal, reflected error. In this case, the Tribunal elected to accord the evidence of the witnesses called in support of the appellant's evidence, little weight, having duly considered the evidence. It did so on the footing that the evidence did not assist the Tribunal in resolving its concerns about the reliability and creditworthiness of the appellant. That conclusion was open to the Tribunal on the evidence and the treatment of the evidence is consistent with the principles established in Ex parte Applicant S20/2002 . Accordingly, the appeal must be dismissed. I certify that the preceding forty (40) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an appeal by an unsuccessful applicant for review of a decision of the refugee review tribunal affirming the decision of the minister's delegate to refuse the appellant a protection visa under the provisions of the migration act 1958 (cth) consideration of whether the tribunal failed to properly exercise its statutory jurisdiction of review having regard to contended errors of analysis and reasoning in the treatment of corroborative evidence migration

Section 117 seeks to strike a balance between competing interests. They are, on the one hand, the interests of protecting a patentee against infringement of the patent, and on the other hand recognising the right of a supplier to freely trade its products in the market place even where that product is or may be used by a third party to infringe the patent. 2 The Collins allege that the Northern Territory, by certain permits issued by the Territory for the alleged supply of bark and wood from the species of the genus Callitris Intratropica (the timber) located at Howard Springs in the Northern Territory, has infringed their patent and have contravened s 117. 3 The Collins since 21 January 1999 have been registered as the owners of Australian Patent No 742711 entitled "Methods of Producing Essential Oils from the Species of the Genus Callitris". They applied for the patent on 8 July 1998 and it was published and became open for inspection on 21 January 1999. It is a patent for producing what is called blue cypress oil. The first claim defining the patented process is described as a method of producing a blue, guaiazulene-containing oil comprising the step of obtaining the oil from a mixture of the bark and wood of Callitris Intratropica. 5 For present purposes it is necessary to note only briefly the particulars of infringement. It involves ACOC using the bark and wood of the timber to produce the infringing oil by steam distillation, a process allegedly protected by the patent, and then having sold the infringing oil to other entities, and having continued to do so and to offer it for sale. They also allege that ACOC did not have the Collins' licence to use the process of the patent in that way. Although ACOC is therefore said to be the primary infringer of the patent, it is not a party to these proceedings. 6 The Territory has put in issue the validity of the patent in suit, as well as its alleged infringement by ACOC. However, for present purposes I assume the validity of the patent and the fact of its contravention by ACOC by the means described. 7 In its defence, the Territory also says that, even if those allegations were made out, it is not liable as an infringer of the patent under s 117 of the Act. The Collins accept that the timber is capable of more than one reasonable use, so that they cannot rely upon s 117(2)(a). In the amended statement of claim, they made no allegations of fact to enliven s 117(2)(c). During the hearing on a few occasions, the Collins' submission appeared to stray into the territory occupied by s 117(2)(c) but upon objection having been raised on the part of the Territory, they accepted that their statement of claim did not make such an allegation and that it was not part of their case. They also accepted that, if their claim relying upon s 117(2)(b) was not made out against the Territory, they could not succeed in the application against the Territory and it should be dismissed. Certain evidence which might otherwise have been relevant to s 117(2)(c) was specifically received only as relevant to the "reason to believe" element of s 117(2)(b). As I have said, for present purposes I have assumed the validity of the patent, and that ACOC's alleged actions have infringed it. 10 I also note that the Collins do not now contend that the timber was capable of only one reasonable use, so that the arm of the claim based upon s 117(2)(a) has fallen away. 11 Consequently, the parties agree that there are really three issues which the present application requires the Court to address. 12 The first issue involves a few steps. It arises under the wording of s 117(1). The evidence shows that at material times the Territory licensed ACOC to enter upon the Howard Springs land and to harvest the timber on it and to remove the timber. The Collins agree that the appropriate description of the arrangement was a licence as described. Consequently, the Territory contends that on the Collins' own allegations and on the evidence, there can be no contributory infringement of the patent as s 117(1) simply does not apply. 13 The second issue is a more straightforward one. It addresses whether the timber is a "staple commercial product" as referred to in s 117(2)(b). If the timber is a staple commercial product, then s 117(2)(b) would not be activated and there would be no use of a product by ACOC within the ambit of s 117(1) (assuming, of course, that the first issue is decided in the Collins' favour). 14 The third issue is a little more complex. It also arises under s 117(2)(b). It is tied up with the first issue to a degree, as it also involves the question of the supplier of a product being a contributory infringer of a process patent when the product is an input into the process only. The issue is as to the extent of the knowledge of the Territory necessary to show it had the requisite "reason to believe". I find that the Territory had reason to believe that ACOC would use the timber from the trees for the purpose of producing blue cypress oil. There is ample evidence to support that finding. Counsel for the Territory did not submit that I should not make that finding, so I do not need to refer to the evidence. The contention of the Territory was that it was necessary for the Territory to have reason to believe that the timber from the trees would be used in a particular way by ACOC, in particular by the mixture of bark and wood, to produce the infringing oil because the mixture of bark and wood in the process is the minimum essence of the patent. The Collins dispute that, but in any event they contend that the Territory did have reason to believe the timber would be used by ACOC in that way. What has been "supplied" by the Territory to ACOC is the timber, and ACOC has then used bark and wood from the timber to produce blue cypress oil. 16 The timber, or bark and wood from the timber, is but an input into the process by which the (assumed) infringing blue cypress oil by ACOC was produced. As I understand the Territory's submission, it said that the use of the timber by ACOC does not infringe the patent per se because it is a process patent. Consequently, the "supply" of the timber by the Territory to ACOC did not activate s 117(1) at all because the "use" referred to must be an infringing use. 17 Section 13(1) provides a patentee with exclusive rights to exploit the invention or to authorise another person to do so. The product resulting from the use of the process, which the patent protects, is the infringing oil. It is not the timber (or the wood and bark from the timber) which the patent protects but the process by which the wood and bark from the timber is used so as to result in the product, namely blue cypress oil. The use of the bark and wood from the timber does not infringe the patent per se. It is the method or process of production which is protected by the patent. 18 As counsel for the Territory recognised, there is an apparent difference in the views of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 ( Rescare ) on the one hand and in Bristol-Myers Squibb Company v FH Faulding & Co Ltd [2000] FCA 316 ; (2000) 97 FCR 524 ( Bristol-Myers ) on the other, as to the construction of s 117(1). In my opinion his Honour decided that question correctly. There must be an act done 'in respect of a product resulting from such use'. Here, the respondent urges, and I agree, there is no such product with the result that, in a case such as the present, s 117 has no operation. But s 117 provides its own dictionary, in subs (2). And our paraphrase of s 117(1), incorporating subs(2)(c), shows, in our view, that the construction urged by the appellant is not only a possible construction but a literal one. That literal construction being consistent with the apparent purpose of the provision, it is, in our view, plainly to be preferred. 21 It is correct, as counsel for the Territory contended, that Bristol-Myers was decided on the ground of want of novelty, so that strictly speaking those observations are obiter dicta. 22 As I have decided this matter on another basis in any event, I think it is preferable simply to note the Territory's contention that I should follow the decision in Rescare , and not to decide the issue as between those two lines of authority. If I were to accept the Territory's contention, it would follow that s 117(1) did not apply to the "supply" of the timber to ACOC by the Territory in any event, because ACOC's use of the product supplied (the timber) did not itself infringe the patent, and that to conclude otherwise would extend the protection afforded a patentee beyond that provided for by s 13(1) of the Act. 23 The additional contention of the Territory on this topic is that, in any event, it was the trees or the timber which was "supplied", and that the relevant product used by ACOC (if Bristol-Myers is to be followed) is not the timber itself but the selected bark and wood from that timber. 24 In my view, that alternative contention draws attention to the further submission of the Territory that it did not supply any product at all by the grant of the licences referred to. 25 I have referred briefly to the licences to ACOC above. They were permissive, as ACOC was not obliged to enter upon the Howard Springs land and lop or clear any trees and remove any timber. ACOC was permitted, but not obliged, to enter upon the Howard Springs land and to harvest the trees and remove the timber from that land. Similar characteristics of an arrangement under a statutory licence were described by Wilson J in The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69 ; (1982) 158 CLR 327 at 352 as the grant of rights under a statutory scheme (in that case, grazing rights) rather than as a supply of fodder. See also per Brennan J in Harper v Minister for Sea Fisheries [1989] HCA 47 ; (1989) 168 CLR 314 at 334 (in that case, with respect to fishing rights). 26 The term "supply" is defined in Sch 1 of the Act in terms which do not readily accommodate a licence which merely enabled ACOC to go upon the Territory's land at Howard Springs and to harvest the trees there and to remove the timber so harvested. There is no positive act of the Territory which, in terms of the definition of "supply", amounted to the "sale, exchange, lease, hire or hire-purchase" or the offer to supply by way of sale etc of the timber. 27 In my judgment, for those reasons, the grant of the licences to ACOC in their terms, and in their context, did not amount to the supply of the timber to ACOC so as to expose the Territory to liability as a contributory infringer of the patent under s 117(1) of the Act, even if --- contrary to my conclusion --- the conduct amounted to the use of the timber within s 117(2)(b) of the Act, and even assuming on the Collins' favour that the timber was used by ACOC so as to infringe the patent, notwithstanding the decision in Rescare . In Theta Developments Pty Ltd v Leonardis (2002) 59 IPR 368 at 384; [2002] FCAFC 170 at [100] Wilcox and French JJ held that a spacer for foundation fastenings was a "staple commercial product", but there is no discussion in that case of that expression which directly pertains to the present issue. Dowsett J, the other member of the Full Court, did not need to expressly address the issue. 29 The phrase "staple commercial product" also appears in s 60(3) of the Patents Act 1977 (UK). In Pavel v Sony Corporation (CA (UK), 13 January 1993, unreported) the Court at [6.4] to [6.5] held that the term means a product that is of a kind which is needed every day and is generally obtainable. See also the brief discussion in Lahore, Patents, Trade Marks and Related Right , Butterworths, 2006 at [18,285], fn 1. The term "staple article commodity of commerce suitable for substantial non-infringing use" appears in the United States Code --- Patents (35 USC, s 271 (1952)). As discussed by A Monotti, "Contributory Infringement of a Process Patent under the Patents Act 1990 : Does it Exist after Rescare? " (1995) 6 AIPJ 217 at 218-221, both the UK and the US provisions were said to be of significance to the Industrial Property Advisory Committee in its Report, "Patents, Innovation and Competition in Australia" (AGPS, Canberra, 1984) leading to the Act. That background does not, however, itself give meaning to the words of s 117 as enacted, although of course it is of assistance in construing those words. 30 It is not necessary to explore fully the content of that expression. The Collins accepted that, but for one feature, the timber was a staple commercial product. The distinguishing feature, it was said, was that the Territory had "written off" the trees on the Howard Springs land as a commercial crop for use as timber (which they described as included within the term silverculture) in November 1995, and therefore that the Territory thereafter regarded the Howard Springs land as only suitable for clearing so that the licences permitting the removal of the timber were merely part of a "salvage" operation. Silverculture, they said, included forestry operations for commercial timber, woodchips, aesthetics, and other commercial uses. But for having been "written off", there would (as the Collins submitted) have been no issue but that the timber was a staple commercial product. 31 I accept that, in November 1995 or thereabouts, the Territory decided upon advice that the trees on the relevant property at Howard Springs were not of sufficient quality for their initially intended use for commercial timber and other associated products. 32 It does not follow from a decision that a staple commercial product being grown for harvesting fails, so that it is not proposed to be harvested for its initial purpose, that the crop being grown thereby loses its character as a staple commercial product. Nor does it follow that because the initially intended commercial use of that product, when harvested, is not pursued that the crop therefore has no commercial value at all. Clearly the timber retained some commercial value because ACOC was prepared to become a licensee of the Territory so as to enter on the Howard Springs land and to remove the timber for its commercial purposes, and to pay to the Territory a licence fee for being able to do so. The licence fee was a royalty payment on the blue cypress oil which ACOC then produced. Indeed, the evidence discloses that it was not simply ACOC, but the Collins and others, who were interested in negotiating with the Territory for the right to enter the Howard Springs land and to remove and use the trees or the bark and wood from the trees. 33 The expression that the tree plantation be "written off" as a production area emerged from the recommendations in the Report from the House of Representatives Standing Committee on Expenditure, May 1978, entitled "Northern Territory Forestry Program" (AGPS, Canberra, 1978). Whilst the Territory accepted that allowing the further growth of the trees for harvesting for timber was no longer commercial, it did not accept that the trees had no commercial value. The subsequent dealings with the trees confirms that the timber on the Howard Springs land was not regarded by the Territory as having no value or as having salvage value only. It also confirms that in fact the timber on the Howard Springs land had, and continued to have, value to the Territory. 34 When the decision was taken that the trees in their then configuration were not suitable for their initially intended forestry use for timber, it was acknowledged that there were other commercial uses for it. Mr Collins himself proposed certain of those uses. Those uses included selective culling to enable the remaining trees to be managed for ultimate felling for timber, felling and storage for individual assessment as to their potential use as milled timber, woodchip mulch, pine oil extraction, potting mix, and firewood. He provided a detailed assessment of those various options. The option of pine oil extraction itself was identified as having potential uses in disinfectants for cleaning products, in the perfume industry, for pharmaceutical purposes, as a paint additive, or as an insecticide. The same proposal described those potential uses as "only the tip of the iceberg". Mr Collins' proposal suggested a substantial residual net worth of the timber. 35 Those views of Mr Collins, reflect the views of Peter Brocklehurst, forester, about the characteristics and uses of the timer. 36 It was in the light of there being residual commercial value in the timber, which the Territory recognised as including timber processing, oil production, woodchip production and for decorative purposes, that it exposed the utilisation of the timber to a public tender process. By the time of the tender invitation in mid 1997, the Territory recognised that the major commercial interest was in harvesting the timber for the extraction of essential oils, but its tender invitation was not limited to that use and expressly said that alternative proposals would be considered. 37 On the evidence, four licences were granted to ACOC to go on to the Howard Springs land and to take timber from that land. They are Miscellaneous Licences No 1858, 1863, 1869 and 1875 issued under the Crown Lands Act (NT). They covered the periods 3 July 1998 to 6 August 1998, and 1 April 1999 to 30 June 2001. The first licence required a royalty payment per tree, and subsequently the licences required a royalty payment of five per cent of the price of the "essential oil and any other products derived for the timber harvested". 38 In The New Shorter Oxford English Dictionary (Clarendon Press, Oxford, 1993, Vol 2, p 3031) a "staple" is relevantly defined as "a staple commodity, the principal or an important item of diet, production, trade etc; a major component or element; a new material". In The Macquarie Concise Dictionary (Macquarie, 2ed, 1988, p 974) it is similarly defined. No doubt in the light of those definitions, the Collins acknowledged that the timber, until it was "written off", was a staple commercial product. In my view that was an appropriate acknowledgment. 39 For the reasons I have given, I do not think that the decision of the Territory in about 1978 not to maintain the plan to allow further growth of the trees on the Howard Springs land for harvesting for timber resulted in the timber from those trees losing that character. 40 The potential variety of commercial uses for the timber, even though not economically usable directly by felling or harvesting the trees for timber, indicates that the timber was not (to use the words at one point used by the Collins) "some special product not generally available in the marketplace". I think that way of putting the argument tends to run together the alternatives expressed in s 117(2)(a) and (b), and so to distort the line the legislature sought to draw in determining when there may be contributory infringement of a process patent by a supplier of products. 41 Consequently, the application of the Collins must fail because they are unable to rely upon s 117(2)(b) of the Act to show "use" of the timber (or the bark and wood from the timber) in terms of s 117(1) of the Act. As noted, they do not rely upon subs 117(2)(a) or (c) for that purpose. 42 The second issue arising under s 117(2)(b) does not arise in view of the conclusion I have reached that the timber was a staple commercial product. 43 I note that the Territory submitted that, at the least, it needed to have reason to believe that the timber would be used by a combination of its bark and wood to produce blue cypress oil before it could be caught by the operation of s 117(2)(b). That, of course, is assuming (contrary to my conclusion) that the timber in the circumstances was not a staple commercial product. The parties did not fully develop their submissions as to whether "reason to believe" at such a general level would be sufficient (on that assumption) to enliven s 117(2)(b), or on the other hand that "reason to believe" beyond use of the timber to produce blue cypress oil was even necessary. 44 I do not need to finally determine those subtle questions. 45 However, it may be helpful to record my findings about the level of knowledge of the Territory at material times. As I have indicated, the evidence clearly shows that ACOC was licensed to remove the trees, at least partly to produce blue cypress oil. The Territory contends that the Collins must show that the "use" of which it had reason to believe is at least the use of the bark and wood of the timber in combination. In my view, the Territory had reason to believe that ACOC would use the bark and wood from the timber in combination for the purpose of producing blue cypress oil. 46 There is no direct evidence by which the Territory or its officers is shown to have acknowledged an awareness of the fact that the patent required the process of mixing a combination of bark and wood from the timber. The tender documents do not suggest any actual awareness of the process, or of the elements or components required to produce blue cypress oil. What is proven is that the provisional patent by which the bark and wood of the timber was to be used to produce blue cypress oil was tabled in the Legislative Assembly of the Territory on 28 November 1995. The patent itself was provided to the Territory by the Collins in about July 1997. The possession of the patent by the Territory, which of course disclosed the combination of the bark and wood from the timber as part of the process, is in my judgment sufficient to conclude in this matter that the Territory had reason to believe that ACOC would use the timber, by combining the bark and the wood from the timber, to produce blue cypress oil. The particular circumstances of this matter also inform that conclusion. Mr Collins had extensive communications with officers of the Territory over some years including about the way to best realise the economic potential of the timber after it was decided that it should not simply be harvested. The detail of those discussions was likely to have disclosed that the process of producing blue cypress oil was not simply by feeding the timber into some processing operation. The availability of the patent was, in that context, information from which the manner of use of the timber could reasonably have been discerned. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

patents act 1990 whether granting of certain licences allowing removal of bark and wood from crown land a "supply" for the purposes of s 117 whether supply of an input into a patented process can amount to contributory infringement under s 117 whether timber or bark and wood from timber a "staple commercial product" intellectual property law

With steam, all styl. v Food Channel Network Pty Ltd [2006] ATMO 88). For convenience I shall refer to the trade mark the subject of these proceedings as "trade mark 967 804". On 12 March 2007 a notice of appeal was filed by leave in this Court by the applicant, Television Food Network, G.P. The orders sought by the applicant are as follows: registration of the Trade Mark Application be refused; and the respondent pay the applicant's costs of, and incidental to, the opposition before the delegate and of this appeal. Evidence of the applicant's business activities was given by Ms Kristen Jordan, Senior Vice President of international development at Scripps Network LLC (Scripps), which company is the managing general partner of the applicant. In her affidavit sworn 3 October 2007 Ms Jordan deposed that the applicant broadcasts programs as the "Food Network". The Food Network is a television programming network, web site and publisher featuring a variety of ways food can be prepared and how food is integrated into daily lives. Food Network is one of the flagship brand of Scripps. So far as relevant, the applicant has three trade marks, each of which has a priority date earlier than that of trade mark 967804. During this period, programs were broadcast in Australia only on cable television. The licensing agreement between the applicant and Odyssey provided that one of the trade marks of the applicant be shown for a minimum five second period at the beginning and the end of each program broadcast in Australia. The current Australian licensees of Food Network are XYZ Networks Pty Ltd ("XYZ") and SBS Australia ("SBS"). XYZ has broadcast the applicant's programs on cable television in Australia since April 2004. SBS has broadcast the applicant's programs on free to air television in Australia since 2006. The applicant's trade marks are featured at the conclusion of programs broadcast by XYZ and SBS in Australia. The managing director of the respondent is Mr Paul Lawrence. As is clear from both the evidence and the proceedings before the delegate and the Court, Mr Lawrence is the directing mind and will of the respondent, as well as a number of other companies. In his affidavit sworn 31 October 2007 Mr Lawrence deposed in summary: The trade mark application the subject of these proceedings was lodged on 28 August 2003 by The Food Channel Pty Ltd (ACN 077987118) ("The Food Channel Pty Ltd"), a corporation which is not the respondent to these proceedings but a separate company controlled by Mr Lawrence. It is common ground between the parties that the filing date and priority date for trade mark 967804 is 28 August 2003. On 20 January 2004 IP Australia recorded an assignment of the application to register trade mark 967804 by The Food Channel Pty Ltd to the respondent in these proceedings. On 29 April 2004 a notice of opposition was lodged by the applicant pursuant to s 52 of the Act. Although not directly relevant to these proceedings, on 24 July 2007 an Opposition Hearing was conducted by IP Australia in relation to registration of the applicant's trade marks 938228, 881666 and 881667. The delegate found that no grounds for opposition to the registration of the applicant's trade marks had been established and directed that the applications proceed to registration ( Food Channel Network Pty Ltd v Television Food Network G.P. [2007] ATMO 68). In summary the delegate's reasons were as follows: the delegate was not satisfied that it was appropriate to draw an inference that the respondent did not intend to use its trade mark. Accordingly, the delegate could not be satisfied that the applicant had substantiated its ground of opposition under s 59 of the Act; there was insufficient evidence that the words "channel" and "network" were interchangeable in the minds of the viewing public. Accordingly, the delegate could not be satisfied that the applicant had substantiated its ground of opposition under s 43 of the Act; although some of the applicant's services were closely related to those of the respondent, the delegate found the marks were not deceptively similar. Outside the realm of television broadcasting and television entertainment any perceived connection between "network" and "channel" is much reduced. Accordingly the delegate could not be satisfied that the applicant had substantiated its ground of opposition under s 44 of the Act. The grounds of the application before me are as follows: The Trade Mark Application should not proceed to registration and should be rejected on the grounds that: pursuant to Section 58 the Respondent is not the owner of the mark the subject of the Trade Mark Application ("the opposed mark"); pursuant to Section 59 , the Respondent does not intend to use or authorise the use of the opposed mark within Australia or to assign the opposed mark to a Body Corporate within Australia; pursuant to Section 43 , the opposed mark is deceptively similar to the Applicant's trade marks which are the subject of the Application Nos. 881666, 881667 and 938228 ("the Applicant's trade marks") registered in respect of similar goods and services; pursuant to Section 44 the opposed mark is substantially identical with or deceptively similar to the Applicant's trade marks all of which have a priority date which is earlier than the priority date of the Trade Mark Application; pursuant to Section 42 the use of the opposed mark would be contrary to law in that it will amount to a contravention of the Trade Practices Act 1974 and also amount to passing off; and pursuant to Section 60 and because of the reputation acquired by the Applicant's trade marks in Australia before the Priority Date of the Opposed Mark the use of Opposed Mark would be likely to deceive or cause confusion. The Delegate erred in finding that the Respondent intended to use the opposed mark in relation to the goods nominated in the Trade Mark Application. The Delegate erred in finding that the use of the opposed mark would not be likely to deceive or cause confusion. The Delegate erred in finding that the use of the opposed mark was not substantially identical with or deceptively similar to the Applicant's Trade Marks. The Delegate erred in not finding that the Respondent was not the owner of the mark the subject of the Trade Mark Application. The Delegate should have found that, because of the reputation of the Applicant's marks, the use of the opposed mark would be likely to deceive or cause confusion. The Delegate should have found that: use of the opposed mark would be contrary to law; and/or the opposed mark is not capable of distinguishing the Respondent's goods. Although s 43 was pleaded in the Notice of Appeal the applicant did not press its claim pursuant to that section, nor argue that trade mark 967804 was substantially identical to its own trade marks for the purposes of s 44(1). The applicant confined its case to reliance on ss 58 , 59 , 44 (1) (deceptive similarity), 60 and 42 of the Act. During the course of the proceedings however the applicant's case before me in relation to s 58 and s 59 extended to the role of The Food Channel Pty Ltd in the application for registration. Indeed, the role of The Food Channel Pty Ltd became a key pillar of the applicant's case in this matter. No issue was taken by the respondent concerning this approach and related submissions of the applicant. Both the applicant and the respondent were represented by Counsel in this case. However it was clear on 13 March 2008, four days before the commencement of the trial, that Mr Lawrence had not at that point retained legal representatives to appear at the trial on behalf of the respondent as required by Federal Court Rules O 9 r 1(3) (TS 13 March 2008 4 ll 15-29). Although the respondent later engaged both solicitors and Counsel, in my view the late retention of legal representatives is reflected in the quality of the respondent's submissions in what is clearly complex litigation. During the course of the proceedings it became clear that there was considerable confusion as to the respective roles of Mr Lawrence, the respondent, and The Food Channel Pty Ltd in relation to application for registration and use of trade mark 967804. This confusion is to some extent reflected in the submissions of the parties, in particular those of the respondent. In my view in order to resolve the application before me the following key issues require determination: Whether The Food Channel Pty Ltd (which was the original trade mark applicant) was the owner of trade mark 967804 at the filing date (s 58 of the Act), and if it was not, whether that defect was fatal to the application. Whether the requisite intention in either The Food Channel Pty Ltd or the respondent existed for the purposes of s 59 of the Act. Whether trade mark 967804 is deceptively similar to the applicant's trade marks and therefore in breach of s 44(1) of the Act. Whether, in light of the reputation of the applicant's trade marks in Australia, the use of trade mark 967804 would be likely to deceive or cause confusion (s 60 of the Act). Whether the use of trade mark 967804 would be contrary to law (s 42 of the Act). I now turn to each of these issues. 1. The applicant contends further that the subsequent assignment of the trade mark application to the respondent (even if the respondent was at all times the owner of the trade mark, which is not conceded) does not "cure" the original fatal defect in the application for registration of the trade mark. The respondent has contended in summary that no proper evidence was lead to prove that there was any previous owner of trade mark 967804 other than the respondent. For the purposes of these proceedings s 58 should be read with ss 27(1)(a) and 72 (1) of the Act. Limited [1947] HCA 59 ; [1947] 75 CLR 203 at 211, The Shell Co of Australia Ltd v Rohm and Haas Co [1948] HCA 27 ; (1949) 78 CLR 601 at 624, Rael Marcus v Sabra International Pty Ltd [1995] FCA 1059 ; (1995) 30 IPR 261 at 266. As has been observed elsewhere, s 58 is conventionally used as a ground of opposition where disputing parties have had a business or contractual relationship, and are in dispute as to which of those parties is the true owner of the mark ( Shanahan's Australian Law of Trade Marks and Passing Off (4th ed, Lawbook Co, 2008) p 380, cf Elkington B, Hall M, Kell D, Trade Mark Law in Australia (Butterworths, 2000) p 77). However s 58 does not confine opposition to registration of a trade mark to a party itself claiming ownership of that trade mark. Examples of cases in which claims --- albeit unsuccessful --- were made by a third party against the registered owner of a trade mark pursuant to s 58 are Global Brand Marketing Inc v YD Pty Ltd [2008] FCA 605 ; (2008) 76 IPR 161 and Mobileworld Communications Pty Ltd v Q & Q Global Enterprise [2003] FCA 1404 ; (2003) 61 IPR 98. Indeed in this case the respondent has not disputed the standing of the applicant to oppose registration of trade mark 967804 on the ground of s 58. I shall return to these cases later in this judgment. As a general proposition, it may be inferred that, by the act of filing an application for registration of a trade mark, the applicant claims "ownership" of the trade mark for the purposes of s 58. The basis of a claim to proprietorship in a trade mark so far unused has been found in the combined effect of authorship of the mark, the intention to use it upon or in connection with the goods and the applying for registration. In reply, the respondent has submitted that the principle should not be applied in respect of s 58 on the basis that: The applicant has submitted that there is nothing contradictory or incompatible between the two decisions. I agree. So far as relevant in the context of this case, Gyles J observed in Pfizer [2006] FCA 1663 ; [2006] 237 ALR 787 that: The principles articulated in Pfizer [2006] FCA 1663 ; [2006] 237 ALR 787 are not in issue in these proceedings. Contrary to the submission of the respondent, I find that there is no inconsistency between these principles and the concept of shift of the evidentiary onus of proof referred to by Jacobson J in Health World [2008] FCA 100 ; (2008) 75 IPR 478. I note in passing that an appeal against the decision of Jacobson J in Health World [2008] FCA 100 ; (2008) 75 IPR 478 was recently dismissed by the Full Court ( Health World Limited v Shin-Sun Australia Pty Ltd [2009] FCAFC 14) , although the Full Court did not consider the evidentiary issue raised by the respondent in this case. I accept the submission of the applicant that, once the opposer to registration makes a prima facie case, the evidentiary onus as to ownership shifts to the applicant for registration. Thus, the applicant is required to make a prima facie case with respect to s 58 , and if the applicant makes such a case the evidentiary onus with respect to ownership shifts to the respondent. Authorship in this context is not confined to the person who originated the mark. A person may be the author even if he has copied a foreign mark; he or she need only be the first person to have applied the mark in Australia: Aston v Harlee Manufacturing Co [1960] HCA 47 ; (1960) 103 CLR 391 at 400 citing Re Registered Trade Mark "Yanx"; Ex parte Amalgamated Tobacco Corporation Ltd [1951] HCA 28 ; (1951) 82 CLR 199 at 202. A person is also the proprietor of a mark if, at the time of application for registration, he or she is entitled to the exclusive use of that mark under the common law: Shell Co of Australia , at 625, 627. At common law that is the person who first used the mark. Examples of the application of this principle are Crazy Ron's Communications Pty Ltd v Mobileworld Communications Pty Ltd [2004] FCAFC 196 ; (2004) 209 ALR 1 and Torpedoes Sportswear Pty Ltd v Thorpedo Enterprises Pty Ltd [2003] FCA 901 ; (2003) 59 IPR 318. I shall consider these cases later in this judgment. Finally in relation to this point, ownership and application for registration of a trade mark are clearly linked by the Act in s 27 and s 58. Has the applicant made a prima facie case that the applicant for registration of trade mark 967804 was not the owner for the purposes of section 58? As to the applicant's claim that the respondent was possibly the owner of trade mark 967804 at the filing date, and that The Food Channel Pty Ltd which actually applied for registration of the trade mark was not, the applicant referred to: The affidavit of Mr Lawrence sworn 31 October 2007 wherein Mr Lawrence deposed that the respondent created the trade mark and that it was using and intended to continue using the mark. The respondent company is based in Queensland Australia. In 1997 after filing the required documentation with our then solicitors MALLESON STEPHEN JACQUES which was then AIPO --- (Australian Industrial Property Organisation) and after their search of the database that was conducted, it was concluded that there was no applications that had been filed or applications that were pending for the trademark --- The Food Channel . The Food Channel trademark proceeded to registration without any opposition. The Food Channel is a REGISTERED AUSTRALIAN TRADEMARK --- NUMBER 733265 --- The Food Channel trademark has been registered in Australia since 1997 and is registered until 2017 when it again comes up for renewal. There is no set formula in The Food Channel using the array of its trademarks. The Food Channel randomly uses the array of its trademarks throughout the course of its business and the services it provides. Annexed hereto and marked annexure C . The Food Channel creates recipes, writes articles, identifies news information, the creation of gardens of food from seedling to harvesting while reporting the progress in written form while also showing the progress and culmination of the harvest through visual moving images, produces cooking and food demonstrations, produces food videos, distributes beef, lamb, veal and other food products domestically and in international markets. The Food Channel was founded in 1997 and has been using its array of trademarks, is currently using all its trademarks and will continue to use all its trademark for the foreseeable future. Annexed hereto and marked annexures A, B, D, E, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y . The fact that The Food Channel Pty Ltd subsequently assigned the trade mark to the respondent - this is consistent with the respondent having been the owner of the trade mark all along. The essence of the applicant's submissions in relation to this affidavit of Mr Lawrence is that in the affidavit, Mr Lawrence claims authority to make the affidavit as and on behalf of the respondent , and in the body of the affidavit defines "The Food Channel" as the respondent . Accordingly, Mr Lawrence's evidence (particularly in para 6 of his affidavit) is that the respondent created trade marks using the words "the Food Channel" including trade mark 967804 which is annexed to the affidavit. Indeed, the only trade mark in Annexure C to Mr Lawrence's affidavit (and which is identified in para 6 of Mr Lawrence's affidavit) is trade mark 967804. However, the applicant also contends that there is considerable confusion in relation to ownership of trade mark 967804 at the filing date, so that it may be impossible to make a positive finding in favour of either The Food Channel Pty Ltd or the respondent as to ownership. The applicant submitted that the following evidence supported this submission: Evidence that trade mark 967804 was apparently used by both the respondent and The Food Channel Pty Ltd in relation to menus (which are within the specification of trade mark 967804). Evidence that the menus exhibited by the respondent which purportedly bear trade mark 967804 have a copyright notice in the name of "The Food Channel", and that at least two menus actually refer to The Food Channel Pty Ltd (Annexures X and Y to the affidavit of Paul Lawrence sworn 31 October 2007). Evidence that a television licence agreement upon which the respondent relied as evidence of its use of trade mark 967804 was a licence agreement entered into by The Food Channel Pty Ltd (Annexure D to the affidavit of Paul Lawrence sworn 31 October 2007). Evidence that recipes purporting to bear trade mark 967804 are in the name of "The Food Channel" and display The Food Channel Pty Ltd and its ABN 16 077 987 118 (Annexure F to the affidavit of Paul Lawrence sworn 31 October 2007). Evidence that recipes purporting to bear trade mark 967804 have a copyright notice in the name of "The Food Channel" (Annexure J to the affidavit of Paul Lawrence sworn 31 October 2007). Evidence that the respondent relied on various letterheads as evidence of use of trade mark 967804, but that all of the letterheads were of The Food Channel Pty Ltd (ACN 077 987 118 and ABN 16 077 987 118) (Annexure L to the affidavit of Paul Lawrence sworn 31 October 2007). In light of these submissions, I consider that the applicant has made a prima facie case that the applicant for registration was not the owner of trade mark 967804 as at the filing date. Indeed, I consider that it is also open on the facts for me to find that it is not possible to identify which of The Food Channel Pty Ltd or the respondent were the owner of trade mark 967804 at the relevant time. Accordingly, the evidentiary onus as to ownership shifts to the respondent. Further, the respondent submits that the only evidence before the Court that the trade mark applicant was The Food Channel Pty Ltd was exhibit 5A and exhibit 6A, which should not have been allowed into evidence, and the fourth affidavit of Mr Lawrence sworn 16 March 2008 which was excluded as evidence by my judgment of 18 March 2008 ( Television Food Network, GP v Food Channel Network Pty Ltd [2008] FCA 378). In my view any suggestion by the respondent that The Food Channel Pty Ltd was not the applicant for trade mark 967804 is entirely without merit. It can be inferred he assigned it to Channel who assigned it to Network which licensed it to Channel and, in those circumstances, both Channel and Network are entitled to, and do, use the trademark. Second, Counsel for the respondent during the course of the hearing accepted that this fact was common ground. It is something that is freely discoverable by search with IP Australia and is not something which my friend could genuinely say he's taken by surprise about or that he is, in some way, prejudiced by not knowing about the fact of the assignment. There is no evidence to show that the owner of the mark was anyone else but that company. The applicant can apply for a trade mark even if he does not intent (sic) to use it provided he has authorised or intends to authorise another person to use it, or if he intends to assign it to another On (sic) the 15th January 2004 the trade mark application pursuant to Section 106 was formally assigned to Food Channel Network Pty Ltd the Respondent in these proceedings. Indeed, that The Food Channel Pty Ltd was the applicant for the trade mark was not in contention during the proceedings. In relation to exhibit 5A and exhibit 6A, the respondent submits that to the extent that these exhibits support the applicant's claim that the original owner of the trade mark was The Food Channel Pty Ltd, and that the trade mark was subsequently assigned to the respondent, the evidence should be disallowed because, in summary: The respondent has also submitted that only the fourth affidavit of Mr Lawrence sworn 16 March 2008, which was ruled inadmissible, contained evidence as to the original applicant for trade mark 967804. In my view these submissions are of little assistance in relation to either the identity of the applicant for trade mark 967804 or ownership of trade mark 967804 at the relevant date. I form this view because: I note the written submission by the respondent that exhibit 5A does not correspond exactly with Annexure H to Mr Lawrence's affidavit sworn 31 October 2007, contrary to the submission of Counsel for the applicant during the hearing (cf TS 119 ll 36-45, 120 ll 1-2, 124 ll 42-44), and that therefore exhibit 5A, and exhibit 6A which purports to be a summary of exhibit 5A, should be excluded. However difficulties faced by the respondent in relation to this submission are: I do not accept the respondent's submissions in relation to exhibit 5A, exhibit 6A or the affidavit of Mr Lawrence sworn 16 March 2008. The respondent's case --- was The Food Channel Pty Ltd the owner of trade mark 967804 through use? The applicant has made extensive submissions in relation to whether The Food Channel Pty Ltd in fact made "use" of the relevant trade mark in the sense contemplated by the Act, so as to establish ownership of the trade mark at the filing date. In particular, the applicant refers to the following documents annexed to Mr Lawrence's affidavit sworn 31 October 2007: Further, during cross-examination by Mr Franklin SC, Mr Lawrence gave evidence to the effect that the opposed trade mark had been used on recipes, menus, and other promotional documents to be provided to supermarkets and butchers (TS 174 ll 35-41, 189 ll 11-17, 190 ll 26-27, 190 ll 31-33, 192 ll 31-37, 196 ll 10-16). It is not in contention that s 27 of the Act requires that there be, inter alia , use of the trade mark "in relation to the goods and/or services. " As Mansfield J observed in Philmac Pty Ltd [2002] FCA 1551 ; (2002) 126 FCR 525 at 539-540 it is necessary that the trade mark applicant was using or intended to use the trade mark as a trade mark. Whether a trade mark is used as a trade mark is judged objectively ( Wellness Pty Ltd v Pro Bio Living Waters Pty Ltd [2004] FCA 438 ; (2004) 61 IPR 242 at 248-249). Thus, for example, there is authority that preliminary discussions and negotiations about whether the mark should be used ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) [1984] HCA 73 ; (1984) 156 CLR 414) , forwarding of samples or brochures in order ascertain whether there is a market for the relevant goods or services (cf Settef SpA v Riv-Oland Marble Co (Vic) Pty Ltd (1987) 10 IPR 402 at 417-418), and distribution of a product free of charge (cf re Ferodo Ltd's Application (1945) 62 RPC 111) do not constitute "use" of a trade mark as contemplated by the legislation. That is shown by the free sample cases, such as Settef . The Irish Supreme Court, in Golden Pages Trade Mark [1985] FSR 27 , held that marked classified telephone directories distributed by the Post Office free of charge to telephone subscribers involved use of the mark by the directory publisher "in the course of trade": the publisher engaged in this activity to earn income from the sale to traders of advertising in the directory... Golden Pages was referred to with approval by Whitford J in "Visa" Trade Mark (1985) 102 RPC 323. I consider it correctly states the law. I agree. "Use" of trade mark 967804 by the original trade mark applicant, The Food Channel Pty Ltd, in the sense that the trade mark has been applied to written documents such as menus or recipes used in relation to catering services (which would be registrable in class 43) or free gifts in the promotion of, for example, meat (which are goods registrable in class 29), is not use in the sense of trade or dealing in relation to these documents. None of these uses appear to be with respect to "printed publications" within class 16 in relation to which application for registration of the trade mark was made. I do not consider that the respondent has demonstrated use by The Food Channel Pty Ltd, which was the trade mark applicant of trade mark 967804, as a trade mark so as to establish ownership through use. The applicant can apply for a trade mark even if it does not intend to use it provided it has authorised or intends to authorise another person to use it, or if it intends to assign it to another. On 15 January 2004 the application for the trade mark was formally assigned by The Food Channel Pty Ltd to the respondent (cf respondent's written submissions p 17). Mr Lawrence as the sole shareholder and managing director of The Food Channel Pty Ltd and the respondent and author of the trade mark properly authorised his companies --- first The Food Channel Pty Ltd and then upon assignment the respondent --- to use the trade mark with a licence back to The Food Channel Pty Ltd from the respondent after the assignment with the intention to use the mark on the goods being printed matter in this case printed recipes (cf respondent's written submissions p 19). "It may be fair to say Mr Lawrence sees the business as his own and sometimes confuses the distinction between himself and his companies, as might be seen from the nature of his affidavits where he defines the Respondent as the 'Food Channel' and (sic) then talks generally about the business of Food Channel meaning his business generally being himself and both of his companies. This is understandable as he is not a lawyer and it appears on the face of the affidavit that he did not have legal representation or advice at the time of drawing and filing of his main affidavit. As the sole shareholder and director of both companies he looks upon them both as his business. In order to establish its opposition under s 58 an opponent must show that: the respective trade marks of applicant and opponent be either identical or substantially identical ( Carnival Cruise Lines Inc v Sitmar Cruises Limited [1994] FCA 936 ; (1994) 31 IPR 375) ; and the respective goods or services of the parties be the "same kind of thing" ( Re Hicks' Trade Mark (1897) 22 VLR 636 ; and a person other than the applicant has the earlier claim to ownership based on use prior to both the present application to register and actual use of the trade mark by the applicant ( Settef SpA (1987) 10 IPR 402 at 413 and Re Hicks' Trade Mark (1897) 22 VLR 636) ; the respondent contends that the applicant cannot show any of these elements and therefore must fail under s 58. I agree with the applicant that the principles cited by the respondent in the fourth submission of the applicant are irrelevant in the context of the applicant's claim. The applicant is not itself claiming ownership of trade mark 967804. The applicant is claiming that the applicant for trade mark 967804 was not the owner of the trade mark at the relevant time, being the filing date. Returning to the first three submissions on this point, I note that they are inconsistent with the respondent's contention that there is no evidence that anyone other than the respondent was the owner of the trade mark at the filing date, and in my view adds to the confusion as to ownership of the trade mark at that date. They do, however, highlight two issues which in my view warrant attention. They are: Assuming that The Food Channel Pty Ltd was the owner of trade mark 967804 at the filing date --- whether, at that date, there was evidence of authorisation or intention to authorise the respondent to use trade mark 967804 by The Food Channel Pty Ltd within the meaning of s 27(1)(b)(ii) of the Act; and Because on the evidence and in light of the history of the proceedings it is clear that Mr Lawrence controlled both the respondent and The Food Channel Pty Ltd, assuming that the respondent was the owner of the trade mark at the relevant time (and not The Food Channel Pty Ltd) --- whether that was a defect in the application to register which was fatal to the application. As I have already observed in this judgment, no grounds have been advanced to warrant a reconsideration by me of the exclusion of Mr Lawrence's fourth affidavit. Further in my view it does not automatically follow that because exhibit 6A is in evidence, s 27(1) becomes relevant. In the interests of completeness however I will nonetheless consider the issues relevant to s 27(1) raised by the respondent. The basis upon which the respondent seeks to discharge the evidentiary onus as to ownership pursuant to s 58 in reliance on s 27(1)(b)(ii) is, with respect, unclear from its submissions. To the extent that I can understand the case being put by the respondent from the written submissions I set out earlier in my judgment, it is that although the respondent was not the applicant of the trade mark at the time of the application to register, nonetheless s 27(1)(b)(ii) of the Act applies in these circumstances because: It is a necessary element of this scenario that the relevant intentions were formed in the mind of Mr Lawrence as sole director and shareholder of both companies. To the extent that the respondent's submissions refer to any intention existing of The Food Channel Pty Ltd at the filing date to later assign the trade mark to the respondent, this does not invoke s 27(1)(b)(iii) because the respondent was already an incorporated company at the filing date. However, the respondent relies in its written submissions on Revlon Inc v Cripps & Lee Ltd [1980] FSR 85 , Polo Textile Industries v Domestic Textile Corporation Pty Ltd [1993] FCA 203 ; (1993) 42 FCR 227 , Crazy Ron's [2004] FCAFC 196 ; (2004) 209 ALR 1 and Torpedoes [2003] FCA 901 ; (2003) 59 IPR 318. As the respondent has relied on these cases in the context of referring to s 27(1) of the Act, I can only infer that the respondent claims that, at the filing date, there was implied authorisation by The Food Channel Pty Ltd of the respondent to use trade mark 967804 within the meaning of s 27(1)(b)(ii). Was there implied authorisation to use? Assuming that The Food Channel Pty Ltd was the owner of trade mark 967804 at the filing date, is there evidence to support a contention that The Food Channel Pty Ltd applied for registration of the trade mark either: The evidence before me is that Mr Lawrence tended to confuse his own business interests with those of his companies, and appeared to randomly use companies and trade marks depending on the circumstances. In this respect I consider that it is open on the facts to find that all companies controlled by Mr Lawrence were authorised to use trade mark 967804. Does this assist the respondent? However, even on the basis that this finding is open, it does not assist the respondent in discharging it evidentiary onus in relation to the key question under s 58 , namely ownership of trade mark 967804 at the filing date (particularly in the face of evidence from Mr Lawrence that the respondent was actually the owner at the filing date). The application of s 27(1)(b)(ii) is only relevant if s 27(1)(a) is satisfied, namely that the trade mark applicant is also the owner. The cases cited by the respondent support the proposition that a person may be impliedly vested with ownership by the original owner of a trade mark such as, for example, as a parent company causing a subsidiary to apply for ownership. So, for example, in Torpedoes Sportswear [2003] FCA 901 ; (2003) 59 IPR 318 while the relevant trade mark was originally owned by Mr Thorpe, it was not in contention that it was registered, with his authority, in the name of a company under his control, and that that company was the "owner" of the trade mark within the meaning of the Act. However ownership impliedly vested and resulting in an application for registration by the person so vested (which would satisfy s 58) should not be confused with an implied intention of a registered owner to authorise use of the trade mark by related parties (which is relevant under s 27(1)(b)(ii)). They are distinct concepts. Further, the cases cited by the respondent support the proposition that a trade mark may be a "house mark" of a corporate group, and that members of a corporate group other than the registered proprietor may have implied authority to use it (see in particular Revlon [1980] FSR 85 at 106 per Buckley LJ and Templeman LJ at 114-115 and Polo Textiles [1993] FCA 203 ; (1993) 42 FCR 227 at 239). In this respect these cases do not consider issues of ownership, only authorised use of a trade mark. It may very well be the case that Mr Lawrence initially considered that The Food Channel Pty Ltd should apply for registration of trade mark 967804, but later considered a more appropriate trade mark applicant would be the respondent with the result that the trade mark application were assigned to the respondent. Commercially, this is perfectly acceptable. However from the perspective of the Act, this approach would only be acceptable if The Food Channel Pty Ltd were also the owner at the filing date (s 58). If The Food Channel Pty Ltd was not the owner at the filing date, as indeed the evidence suggests, but Mr Lawrence subsequently considered that the appropriate trade mark applicant should be the respondent, then Crazy Ron's [2004] FCAFC 196 ; (2004) 209 ALR 1 supports the proposition that the trade mark application should have been withdrawn and a fresh trade mark application lodged ( Crazy Ron's [2004] FCAFC 196 ; (2004) 209 ALR 1 at [130] - [131] ). I have already considered evidence from Mr Lawrence that the respondent was the owner at the filing date, and substantial conflicting evidence as to who the owner has been throughout the application process. The respondent's submissions as to s 27(1) do not clarify this matter. I do not consider that reliance on s 27(1) assists the respondent in discharging its evidentiary onus under s 58. In summary, I do not consider that the respondent has discharged its evidentiary onus and established that The Food Channel Pty Ltd was the owner of trade mark 967804 at the filing date. In my view, while there is evidence to suggest that the respondent was the owner of trade mark 967804 both at the filing date and thereafter, the evidence also supports a conclusion that a finding as to ownership is not possible (other than, possibly, that the owner was Mr Lawrence himself). I consider that this is a defect in the application to register trade mark 967804. Was the defect in the application to register fatal to the application? Whether the act of making an application to register a trade mark in the name of a party other than the owner is a fatal defect in that application was given some consideration in Mobileworld Communications [2003] FCA 1404 ; (2003) 61 IPR 98 and Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161. The decision in Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161 was delivered after my judgment in this case was reserved. The Court in Global Brand Marketing [2008] FCA 605 ; 2008) 76 IPR 161 also considered the decision in Mobileworld Communications [2003] FCA 1404 ; (2003) 61 IPR 98. So far as is relevant in Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161 the cross-claimant in that case claimed that the validity of registration of a trade mark was to be determined at the filing date. The trial judge in Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161 referred to Mobileworld Communications [2003] FCA 1404 ; (2003) 61 IPR 98 where the trial judge had noted the innocent error in registering the wrong applicant. Further, in Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161 the trial judge was satisfied that the company to which the application for registration was eventually assigned was the owner of the trade mark in question (at [135]-[136]). The applicant in the proceedings before me submits that the defect in the trade mark application --- namely, that The Food Channel Pty Ltd as trade mark applicant was not the owner --- was fatal to the trade mark application because only the owner of a trade mark can apply for its registration. Trade mark 967804 could thus not have been assigned to the respondent at a later date. Both Mobileworld Communications [2003] FCA 1404 ; (2003) 61 IPR 98 and Global Brand Marketing [2008] FCA 605 ; (2008) 76 IPR 161 are distinguishable from this case because in both cases the ownership position was clear. In contrast, I do not accept that the Act sanctions a position in which an application can be made where ownership of a trade mark is not capable of identification during the application process, and a finding cannot be made that the applicant was the owner, as is the case in these proceedings. I note the submissions of the respondent that Mr Lawrence tended to confuse his own business interests with those of his companies. However in my view the policy of the Act is clear. Section 58 requires that, at filing date, the owner of the trade mark must be identifiable, and must be the applicant. As I have already observed, this does not mean that, within a corporate group, there cannot be transfer of ownership and assignment of the application within the group as is commercially necessary. However in my judgment there must at least be evidence of this, as well as compliance with the Act. "Ownership" is a key concept within the Act, requiring certainty. The policy of the Act is clearly to vest an owner of a trade mark with important rights and powers (cf for example sections 20, 21 , 22, 27, 58 , 58A). I do not accept that the Act sanctions a position such that a person who is not the owner of a trade mark can nonetheless apply for registration of a trade mark (and may thus be opposed under s 58) , but the application itself is somehow subsequently validated by later identification of the owner and that owner being assigned the application by the trade mark applicant. In circumstances where the position of ownership is so confused that the owner of the trade mark cannot be identified at the filing date (or indeed throughout the application process as appears to be the case here as a result of the conflicting evidence as to ownership), the application may be opposed pursuant to s 58 of the Act. I am not satisfied in this case that The Food Channel Pty Ltd was the owner of trade mark 967804 at the filing date. While there is evidence that the respondent was the owner at the filing date, in my view the confusion in the evidence tendered by the respondent is too great for me to make a positive finding to this effect. However, even if the respondent were the owner at all times prior to and/or during the application process the defect in the original application is not cured by the assignment of the trade mark application to the respondent. This defect is fatal to the trade mark application. The applicant to these proceedings has substantiated its claim pursuant to s 58 of the Act. This finding is sufficient ground for me to make the order sought by the applicant that the trade mark 967804 application should not proceed to registration and should be rejected. However in the interests of completeness, and in case I am wrong in relation to this finding, I will consider the other issues the applicant has raised in these proceedings. Similarly, I infer that once the application for registration was assigned to the respondent, it was on the basis that the respondent intended to use it or authorise the use of it in Australia. In order for the applicant to displace these findings it needs to make a prima facie case of lack of intention. Just prior to the hearing Mr Lawrence sent several pages of submissions, which he reiterated at the hearing. His submissions related to the fact that the trade mark filed in respect of this application was a cut and paste montage, made up from parts of other material already in use, that it had been 'tidied up' and was now used in a more professional-looking style. He concentrated on this aspect, rather than dealing with the more appropriate issues of use of the trade mark in relation to the claimed goods. There are likely to be many reasons for an applicant neglecting to file evidence in answer. The failure may point to a lack of intention to use the trade mark but could as easily point to a misunderstanding of the requirements for filing evidence, or disorganization within the applicant company. There is no requirement for an applicant to ask to be heard when an extension of time request is denied, and the applicant's non-action in this regard is a matter of choice. Similarly, appointing an agent to manage an opposition is a matter of choice, and I do not see anything suggestive of abandonment in the applicant not choosing to do so in this case. Filing additional applications is another choice, and need not point to a decision to cease using an earlier trade mark. Mr Lawrence, in failing to make his comments about his firm's intentions in declaratory form, cannot expect me to give them any great weight, but the information provided would be consistent with a credible and properly motivated (if utterly unsubstantiated intention) to use a trade mark which, under the provisions of Section 7 of the Act, could be considered use of the trade mark as applied for. The fact that Mr Lawrence was prepared to attend a hearing to attempt to support his company's application would tend, to some degree, to counter such an inference. This ground of opposition is not established. In support of the first point, the applicant has submitted, in summary, that: In support of the second point, the applicant has submitted, in summary, that: in relation to the possible use by the respondent of trade mark 967804, it is clear from evidence of Mr Lawrence that the respondent intended to use an alternative, but similar, trade mark. In particular the applicant referred to the affidavit of Ian Robert Tannahill sworn 6 August 2007, wherein Mr Tannahill, a patent attorney who appeared for the applicant at the opposition hearing, deposed that at the opposition hearing Mr Lawrence had said the respondent would use an alternative, although somewhat similar mark. The amended trade mark, considered by the delegate in her decision (T elevision Food Network G.P. Further, I consider that the applicant has made a prima facie case that the respondent did not intend to use trade mark 967804. Accordingly the evidentiary onus as to intention shifts to the respondent. The respondent contended that the decision in Health World Ltd [2008] FCA 100 ; (2008) 75 IPR 478 is distinguishable from the facts in these proceedings, in that in Health World [2008] FCA 100 ; (2008) 75 IPR 478 while the relevant companies had the same directors they had different shareholders, whereas in these proceedings there was not only a formal assignment and licence but Mr Lawrence was the sole shareholder and managing director of both the respondent and The Food Channel Pty Ltd. The respondent also referred to Oakley, Inc (2003) 58 IPR 452 at [30], as already set out in this judgment. Further, the respondent submitted in summary: evidence of Mr Lawrence, particularly that deposed in his affidavit of 31 October 2007, demonstrated that the respondent had both an intention to use trade mark 967804 and had used it; Mr Lawrence's evidence was credible. To the extent that the applicant sought to discredit that evidence by suggesting that Mr Lawrence had modified documents to insert trade mark 967804, the Court should prefer the evidence of Mr Lawrence. No expert evidence was lead by the respondent to support its allegations of concocted evidence. The respondent was "ambushed" at the trial in relation to such allegations; Mr Lawrence has used a "slightly altered trade mark" which does not detract from use of trade mark 967804. Trade mark 967804 was a "cut and paste job" and Mr Lawrence needed to modify it to make it compatible with the digital representation on his computer. Any suggestion by Mr Tannahill that he heard Mr Lawrence say he was not going to use that mark referred to "the cut and paste job", and not the "cut and paste job" represented in the computer-rendered version. I consider this fatal to the trade mark application. First, the respondent does not dispute that the appropriate date for determination of this issue is the filing date, namely 28 August 2003. Accordingly it is necessary that, as at that date, the original applicant for registration --- The Food Channel Pty Ltd --- had the intention to use the trade mark (or other intention to which s 59 refers). Second, I accept the applicant's submission that the fact that the respondent and The Food Channel Pty Ltd had the same shareholder and the same director at all relevant times was, without more, of no moment in this context. The respondent and The Food Channel Pty Ltd are separate corporate entities. It is necessary that the respondent make a case as to intention. It has not. Third, I consider that the evidence before me is unsatisfactory not only as to the entity which may have used the trade mark, but when and whether the trade mark was actually used. In particular I take the view that it is unclear from the evidence tendered by the respondent and annexed to the affidavit of Mr Lawrence sworn 31 October 2007 whether the use of trade mark 967804 as evinced by Annexures F, J, K, O, P, Q, X and Y was by the respondent or The Food Channel Pty Ltd. A visual comparison of these trade marks indicates the lack of clarity in that: Indeed the affidavit of Mr Lawrence states that the use is by the respondent, but a number of the documents bear the ACN and ABN of The Food Channel Pty Ltd, and a number of documents simply refer to "The Food Channel" which could mean either the respondent or The Food Channel Pty Ltd. Fourth, I consider that any suggestion by the respondent that it was "ambushed" in relation to the applicant's cross-examination of Mr Lawrence and subsequent submissions concerning modifications to documents in evidence is without merit. All evidence of the applicant relevant to the issue of inappropriate modification of documentation was in the affidavit of Kirsten Melinda Clayton sworn 14 December 2007. Fifth, and following on from this point, I consider that the applicant has made a case discrediting the evidence of Mr Lawrence as to use trade mark 967804 since 1997 or 2004 on the documents annexed to his affidavit of 31 October 2007 by either The Food Channel Pty Ltd or the respondent. There is evidence before the Court that there are differences between Annexure J to Mr Lawrence's affidavit sworn 31 October 2007 and the original version of that annexure supplied electronically to the applicant, namely: Explanations given by the respondent for these differences were: I do not accept these explanations for modifications to the document (exhibit 7(A)) which produced Annexure J. These explanations are not supported by evidence of any kind. The Court can make decisions based only on evidence, not speculation and hypothesis. The applicant has submitted that the only credible explanation for the creation of Annexure J is that it was created on 30 October 2007, the day before Mr Lawrence signed his affidavit, by modifying an earlier document, created in 2004 with a different trade mark on it, to insert the opposed trade mark and the copyright date 2004, and to mislead the Court into believing, contrary to the facts, that Annexure J had been in circulation with the opposed trade mark on it since 2004. In my view such evidence as is before me supports the conclusion which the applicant invites. Accordingly I give no weight to Annexure J to the extent that it purports to evidence intention to use trade mark 967804, or indeed use of the trade mark in 2004. The applicant submits further that other documents annexed to Mr Lawrence's affidavit and put in evidence to show use of the trade mark 967804 from an early date were also modified shortly before execution of his affidavit, however in this case there were no earlier versions of these documents supplied on disk to the applicant. The applicant draws my attention specifically to Annexures K, B, X, and Y. The applicant submits that, given the clear modification of the original of Annexure J as demonstrated in exhibit 7(A) immediately before the affidavit was executed, the Court should be suspicious of modifications to those documents. I agree with the applicant, and consider that little weight should be given to these annexures to the extent that they purport to evidence intention to use the trade mark, or indeed use of the trade mark. Sixth, I do not agree with the view of the delegate that the fact that Mr Lawrence was prepared to attend a hearing to attempt to support his company's application would tend, to some degree, to counter an inference that there was no intention that trade mark 967804 be used (cf Television Food Network G.P . [2006] ATMO 88 at [13] ). Finally, I note that the delegate in her decision considered that the "amended" version of the trade mark which the respondent has used, and to which reference is made in Mr Tannahill's affidavit discussed earlier in this judgment, could be considered use of the trade mark 967804. In this case the key differences between trade mark 967804 and the amended version are: The key issue in considering s 7(1) in this context is whether, notwithstanding the similarities between the two marks, the additions or alterations are such as to "substantially affect the identity" of trade mark 967804. This is clearly a question of fact in each case. Although there are decisions in which the court or relevant administrative body has considered whether, in the particular circumstances, alterations or embellishments have affected the identity of a trade mark (for example Morny Ltd's Trade Mark (1951) 68 RPC 55 (Ch D), 131 (CA); Levi Strauss & Co v Shah [1985] RPC 371 ; QH Tours Ltd v Mark Travel Corporation (1999) 45 IPR 553) I do not find these decisions of assistance in the present proceedings. In this case, notwithstanding the differences between trade mark 967804 and the amended version, there are also obvious essential similarities between the two marks: I am not persuaded that the additions or alterations made by Mr Lawrence to trade mark 967804 were such as to substantially affect the identity of the trade mark. However in any event this finding does not appear to assist the respondent in its case. The respondent submits that Mr Lawrence has used the amended version. It is stated that "Mr Lawrence did not intend to use the opposed mark, though somewhat similar mark". However, what is written in the letter dated 11th July 2005 from The Food Channel to IP Australia was; "the trademark in question 967804 is a cut and paste/hand drawn and will be tidied up to render it suitable for use in trade". All owners of trademarks have the right to update one or more graphic elements from time to time. It then needed to be computer generated that is suitable for use in the workings of business in trade. Mr Lawrence has never been an applicant for the trade mark. There is no evidence before me that either The Food Channel Pty Ltd (as the original applicant) or the respondent (after the assignment of the application for registration) ever actually used the amended version of the trade mark at any time, so as to show use of (or intention to use) the trade mark by either of those entities at any time. In my view Mr Lawrence's evidence, rather than clarifying any intention to use in any of the companies which he controls and which have been trade mark applicants, confuses the issue further. There is no evidence before me that any use Mr Lawrence made of the amended version of the trade mark was in any way related to either The Food Channel Pty Ltd or the respondent. I do not find discussion of this issue by the delegate helpful --- comments of the delegate in relation to use of the amended version are again confined to use of that amended version by Mr Lawrence ( Television Food Network G.P. [2006] ATMO 88 at [12] ). In my view the applicant succeeds in establishing lack of the requisite intention for the purposes of s 59 of the Act. I consider that the delegate erred in finding that the respondent intended to use trade mark 967804 in relation to the goods nominated in the trade mark application. Had I not already found in favour of the applicant in relation to s 58 of the Act, I would be prepared to make the orders sought by the applicant on the basis of s 59. In relying on s 44(1) , the applicant confined this aspect of its application to trade marks 881666 and 881667. The applicant therefore submits that these trade marks qualify for consideration under s 44(1) because they are in respect of "similar goods or closely related services" to those in respect of which application is made for the trade mark, namely (in class 16) "Printed matter, periodical publications, books and newspapers; paper and cardboard articles; posters, calendars; writing instruments, pencils, pens, stationery, writing pads, greeting cards; photographs". In summary, the delegate found as follows: the applicant's trade marks have earlier priority dates than that of the respondent (at [18]); principles applicable to the operation of s 44 can be found in Registrar of Trade Marks v Woolworths Ltd [1999] FCAFC 1020 ; (1999) 93 FCR 365 and Southern Cross Refrigerating Co v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 at 594-595 (at [20]); the applicant had submitted that the word "network" is understood by the relevant public as being the plural of "channel" and that therefore "Food Channel" and "Food Network" will not be distinguished in the marketplace. The delegate observed that she was aware that there were various entities in the television industry within Australia which used a naming convention for both the overall television network and individual channels within that network. However the delegate was satisfied from her own knowledge of the Australian television market that the public understanding of the relationship between the names is as a result of exposure over time to the naming convention, rather than the result of an inherent equivalence in terminology. Although the delegate understood that most television networks in the Australian market involved several related channels, she was not satisfied that at this stage, and failing an educative process of the public whereby the public came to recognise that a television network as comprising individual television channels, that the terms were the same. Accordingly the delegate did not consider the trade marks, when viewed as wholes, as being deceptively similar (at [21]-[23]); the delegate was satisfied that the market for "printed matter, periodical publications, books and newspapers; paper and cardboard articles; posters, calendars; writing instruments, pencils, pens, stationery, writing pads, greeting cards; photographs", being goods within class 16, is separate from that of the television broadcasting and television entertainment markets (at [24]); the delegate noted that within the applicant's service claims in class 41 in respect of registrations 881666 and 881667 was the item "publication of printed publications. " The delegate referred to Caterpillar Loader Hire (Holdings) v Caterpillar Tractor Co [1983] FCA 145 ; (1983) 48 ALR 511 where Lockhart J had considered service marks and the problems of confusion with goods marks. The delegate considered that publication services are closely related to the results of those services, namely printed publications, be they books, leaflets, newspapers or newsletters, and that the presence of those goods within the specification was sufficient to trigger the particular provision of s 44 which deals with goods and services. Accordingly, the delegate was satisfied that some of the applicant's claimed services, namely the "publication of printed publications", were closely related to some of the respondent's goods, namely "printed publications, periodical publications, books and newspapers" (at [25]-[26]). The issues in contention are therefore: I shall look at these issues in turn. In summary, the respondent submits that: I consider the respondent's case in relation to this point misconceived. First, I reject the respondent's contention that, because the applicant's trade mark is registered for services and trade mark 967804 relates to goods, s 44(1) is not relevant. Section 44(1) clearly contemplates rejection of the application for the registration of a trade mark in respect of goods , where a trade mark applicant's trade mark is substantially identical with or deceptively similar to, inter alia , a trade mark registered by another person (or sought to be registered) in respect of similar goods or closely related services . As the delegate observed, this issue was considered in some depth by Lockhart J in Caterpillar Loader Hire (Holdings) [1983] FCA 145 ; (1983) 48 ALR 511 , particularly at 522-523. I similarly note the recognition to the possibility of deceptive similarity between a service mark and a mark in respect of closely related goods discussed in Registrar of Trade Marks v Woolworths [1999] FCAFC 1020 ; (1999) 93 FCR 365 at 380. Second, the emphasis in s 44(1) is on the registration of a trade mark. It is not the actual use of the competing trade marks which is relevant. It is not relevant whether the applicant provides or intends to provide the service referred to in class 41. Third, I do not accept the respondent's submission (for which it provides no substantiation nor authority) that reference to "publication of printed publications" means publication for others of printed publications. In my view the delegate was correct in finding that the service of publication of printed publications (class 44) is closely related to goods in the nature of printed matter, periodical publications, books and newspapers, paper and cardboard articles, posters, calendars, writing instruments, pencils, pens, stationery, writing pads, greeting cards, photographs (class 16). The concept of deceptive similarity within s 44(1) (and equivalent legislation) has been extensively considered by the courts. Relevant guiding principles include the following: Would a person of ordinary intelligence and memory, with an imperfect recollection of the applicant's trade marks, upon seeing trade mark 967804 or hearing the words "The Food Channel", be caused to wonder whether it comes from the same source or whether there is a connection between them? No evidence was produced as to actual confusion in relation to these particular trade marks, however evidence relevant to this question was given by Ms Jordan and expert witnesses Mr Richard Allen (called by the applicant) and Mr Robert Geddes (called by the respondent). Although Ms Jordan was not called to give expert evidence, nonetheless I give her evidence as to her experience in the television industry some weight in light of her current role, and also in view of the absence of objections from the respondent as to her evidence. I use them interchangeably, other broadcasters use them interchangeably and customers use them interchangeably. It has been the case in my experience that this happens internationally. This happens frequently, even though the FOOD NETWORK trade marks are clearly displayed in front of the enquirers. This has led me to conclude that the public sees the words "channel" and "network" as one and the same (affidavit of Kristen Jordan sworn 3 October 2007). In relation to the evidence of Mr Allen and Mr Geddes I note that there is no dispute as to their expert qualifications. Mr Allen deposed that the words "Channel" and "Network" are commonly used interchangeably by the Australian television industry and media in general, and that there is a real and tangible possibility that the general public would perceive that goods and services bearing the brand "Food Channel" originate from the same source as the "Food Network" enterprise (affidavit of Richard William Allen sworn 6 September 2007 paras 19-20). Mr Allen also said during cross-examination that over time in the minds of Australians there had been a blurring of the distinction between the concept of "channel" and the concept of "network" (TS 108 ll 30-35). Mr Geddes deposed that, in his view, the trade marks are sufficiently distinct as to present no tangible danger of confusion (affidavit of Robert Warring Geddes sworn 30 October 2007 para 28). However Mr Geddes also gave evidence that: In summary, it appears that both expert witnesses agreed that: Although the delegate in her reasons for decision was not persuaded that the trade marks are deceptively similar, in my view the evidence is compelling that there is a real and tangible danger that members of the public, with an imperfect recollection of the essential features of the applicant's trade marks, will be caused to wonder whether goods under the trade mark "Food Channel" are from the same source. The delegate took the view that, once outside the realm of television broadcasting and television entertainment, the terms "channel" and "network" lose much of their common significance, and any perceived connection is much reduced. However in addition to the evidence of Ms Jordan and the expert witnesses, I note that: Further, and addressing specific submissions of the respondent, I find that: In my view trade mark 967804 is deceptively similar to those of applicant within the meaning of s 44(1) of the Act. Accordingly I find that the delegate erred in finding that trade mark 967804 was not deceptively similar to the applicant's trade marks. Had I not already found for the applicant in relation to its claims pursuant to s 58 and s 59 I would be prepared to make the orders sought by the applicant in light of my findings in relation to s 44(1). The applicant did not canvas the issue before the delegate. In summary, the applicant has submitted that it has put on evidence to establish that it has, in Australia, goodwill and a reputation in trade marks incorporating the words "FOOD NETWORK". In particular, the applicant refers to the affidavit of Ms Kristen Jordan to which I have already referred in this judgment. Accordingly, the applicant submits that its case pursuant to s 60 is substantiated. The respondent submitted in summary that, because there was no evidence from the Australian licensees of the applicant, there is no evidence of any reputation of the applicant or its trade marks in Australia; further, no other evidence was given as to the applicant's reputation in Australia prior to the priority date of trade mark 967804. The respondent also referred to McCormick & Company Inc v McCormick (2000) 15 IPR 102, and, in what appears to be a confused submission, another of the respondent's trade marks. In order to successfully oppose registration of a trade mark pursuant to s 60 the applicant must satisfy the Court that: Its trade marks had acquired a reputation in Australia in relation to goods or services before the priority date of trade mark 967804; and Because of the reputation of the applicant's trade marks, the use of trade mark 967804 would be likely to deceive or cause confusion. The current form of s 60 of the Act follows amendments to the Act by the Trade Marks Amendment Act 2006 ( Cth). The most significant amendment to s 60 effected in 2006 was the removal of the reference to the opposed trade mark being "substantially identical with, or deceptively similar to" a relevant trade mark. There are a considerable number of cases dealing with s 60 in its previous form. It is not in contention that the amended version of s 60 is relevant in these proceedings. Have the applicant's trade marks acquired a reputation in Australia? It is clear from s 60 that it is necessary that the reputation of the applicant's trade marks existed before the priority date of trade mark 967804 --- in this case 28 August 2003. A number of cases provide some guiding principles in considering the meaning of "reputation" in this context. by the community or the public generally; repute ... 2. favourable repute; good name ... 3. A favourable and publicly recognised name or standing for merit, achievement, etc. ... 4. The estimation or name of being, having done, etc, something specified. For some highly specialised products, awareness among a few thousand persons, or even less, might be sufficient. The intention of section 60 of the Act is to implement Australia's obligations to protect well known marks under the Paris Convention for the Protection of Intellectual Property and the 1994 World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The provisions have not been written so as to establish a new class of trade marks ("well-known" marks) or to prescribe a particular threshold of how well-known a mark must be. Rather, the test has been written so that it can be applied to all marks. The test depends on the extent of the reputation in Australia that has been acquired by a sign. In light of that reputation, the question to be asked is whether the use of a subsequent trade mark would be likely to result in deception or confusion. Section 60 is a ground for opposition to a trade mark application for registration, which can also be used under section 88 as a basis for cancellation of a registration by the courts. Under the current arrangements the provisions of section 60 require that the applied-for mark be substantially identical with, or deceptively similar to, the trade mark forming the basis of opposition before consideration of any deception or confusion, resulting from the reputation of the opponent's trade mark, can take place. Substantial identity and deceptive similarity are tests undertaken in examination of an application before the opposition process, and have very well established scope. There have been a number of instances where a trade mark has an established reputation in Australia, and use of a subsequently applied-for trade mark would deceive or cause confusion, even though the subsequent trade mark is not substantially identical with, or deceptively similar to the original trade mark. However, because of the way paragraph 60(a) of the Act is written it is not possible to currently use this provision to prevent registration of a mark which fails the tests for substantial identity or deceptive similarity, but which nevertheless will cause confusion or deception in relation to a well-known mark. The tests for deception and confusion are all well established in judicial authority, and hinge on the question of whether or not a reasonable number of people may be caused to wonder if a trade connection exists between the marks. By removing the requirement for substantial identity or deceptive similarity from section 60, the ground for opposition under section 60 can be used to oppose the registration of a trade mark because of the possible deception or confusion arising solely from the reputation of a trade mark. Under the amended provisions the consideration of oppositions would take into account the extent of the reputation of the opposing mark at the time the opposed mark was applied for, and the likelihood of deception and confusion occurring in the marketplace because of this. New paragraph 60(a) of the Act provides that a trade mark may be opposed where another trade mark has a reputation, and the registration of the opposed mark will cause confusion or deception in the market place, whether or not the reputation is built on a mark that is identical or deceptively similar to the opposed mark. First, clearly a finding of deceptive similarity pursuant to s 44(1) does not equate with a finding of likelihood to deceive or cause confusion under s 60. Section 60 does not require similarity --- only the likelihood to create the state of affairs contemplated by s 60. However there is evidence before the Court as to the possibility of confusion in the minds of the general population by use of "Food Network" and "Food Channel". Accordingly I consider a finding that use of trade mark 967804 would be likely to deceive or cause confusion is open on the facts. Second, as clarified in the Explanatory Memorandum, s 60 is of particular application to trade marks with established reputations in Australia. However in my view, notwithstanding Ms Jordan's evidence as to the widespread dissemination of the applicant's programmes, I am not satisfied that those programmes, or the applicant's trade marks, have an established reputation in Australia. In my view it is not enough for the applicant to give evidence that its programmes are broadcast on television in this country, with a five second exposure of its trade marks at the beginning and end of its programmes. This does not, in my view, automatically establish that the applicant's trade marks have an established reputation in this country. Further, it is clear that s 60 requires that the respondent's trade mark to be likely to deceive or cause confusion because of the reputation of the applicant's trade mark in Australia. Accordingly, the evidence that the applicant's programmes are broadcast in the United States to more than 92 million television households is in my view irrelevant as is, without more specific detail relevant to reputation in Australia, the evidence concerning monthly hits on the applicant's website. In my view the applicant has not substantiated its claim pursuant to s 60. I note that the applicant did not oppose registration of trade mark 967804 on the basis of s 42 before the delegate. The applicant contends that use by the respondent of trade mark 967804 will be contrary to law because, by use of the trade mark, the applicant will in trade and commerce be engaging in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of s 52 Trade Practices Act 1974 (Cth), and also be engaging in conduct tantamount to passing off. In particular, the applicant refers to evidence it has put on to establish that it has, in Australia, good will and a reputation in trade marks incorporating the words "FOOD NETWORK". On the basis of these submissions I am not satisfied that trade mark 967804 infringes s 42 of the Act. No substantive case is made by the applicant in this case in the context of its s 42 claim that the respondent's conduct with respect to its trade mark breaches s 52 Trade Practices Act , or constitutes passing off. The applicant has asked the Court to, in essence, infer that conduct of the respondent breaches s 52 or is passing off, by analogy with the applicant's claims pursuant to s 44(1). However while I have found that trade mark 967804 infringes s 44(1) of the Act, in my view it does not automatically follow that the conduct of the respondent breaches s 52 Trade Practices Act or constitutes passing off, and that in turn use of trade mark 967804 would be contrary to law. In relation to s 52 Trade Practices Act and passing off I make the following specific observations. It is ordinarily necessary for a party claiming breach of s 52 to prove to the reasonable satisfaction of the Court the nature of the alleged conduct and the circumstances which rendered the conduct misleading: Watson v Foxman (1995) 49 NSWLR 315 at 318. Principles relevant to consideration of claimed breach of s 52 include the following: In these proceedings the evidence clearly shows that the applicant is a television programming network, web site and publisher specialising in the subject of food, and that it distributes internationally television programmes focussing on the subject of food. The evidence before the Court as to the activities of the respondent reveals that it is a company with one shareholder and one director (Mr Lawrence), and that its activities have included distribution of free recipes, menus and leaflets to promote, inter alia , the sale of meat. I consider it very likely that, while there could be a transitory association between the products of the applicant and the respondent in the mind of a member of the public, the brief association would be quickly dispelled on closer association with the products. In any event, as I have observed, no submissions have been put to the Court to substantiate a case pursuant to s 52 Trade Practices Act in the terms which I have outlined (or otherwise), and no evidence put to the Court to support such a case. In my opinion the evidence before the Court does not satisfy the elements of the tort. There is, for example, no evidence of intention of the respondent or damage to the applicant as required to establish passing off. I am not satisfied that the respondent's conduct constitutes passing off so as to be contrary to law as required by s 42. I am not satisfied that the applicant has substantiated its case pursuant to s 42. Accordingly it is appropriate that the following orders be made: Registration of Trade Mark Application No 967804 be refused; and The respondent pay the applicant's costs of, and incidental to, the opposition before Hearing Officer Alison Windsor as Delegate of the Registrar of Trade Marks, and of this appeal. I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

trade marks trade marks act 1995 (cth) review of decision of delegate of registrar to allow registration of trade mark evidentiary onus trade mark application assigned to respondent before registration original trade mark applicant and the respondent related companies whether original trade mark applicant owner at filing date whether ownership established through use or otherwise whether use of trade mark "as a trade mark" relationship between s 58 and s 27(1)(b)(ii) whether explicit or implied authorisation to use trade mark whether defect in trade mark application fatal whether intention to use within meaning of s 59 whether deceptive similarity pursuant to s 44(1) "closely related services" reputation in context of s 60 whether applicant's trade marks had a reputation in australia prior to priority date of relevant trade mark likelihood to deceive or cause confusion s 42 interaction with s 52 trade practices act 1974 and passing off admission of exhibits credibility of evidence as to use of trade mark whether refusal to allow exhibits and affidavit should be revisited intellectual property evidence

First, in August and September 2002, the First, Third and Fourth Respondents terminated the employment of 12 individuals for a prohibited reason or reasons that include a prohibited reason. Secondly, each of the four respondents between mid-September 2002 and December 2002 then refused to employ any one of 11 of those individuals, again for a prohibited reason. No allegation of a refusal to employ is made concerning Ms Susan Jane Young. Section 298L says such conduct is carried out for a prohibited reason if carried out for a reason that the employee or person concerned has, put broadly, joined or become an officer or delegate of an industrial association, secured an entitlement to the benefit of an industrial instrument or order, has participated or given evidence in a particular proceeding or, in the case of an employee who is a member of an industrial association seeking better industrial conditions, is dissatisfied with his or her conditions of employment. The Employment Advocate alleges that each class of conduct was carried out for one or more of these prohibited reasons in the case of each individual. The section identifies other subject matter not relevant to these proceedings. 4 Sections 298K and 298L of the Act lie within Div 3 of Pt A which addresses 'Conduct by employers'. 6 Apart from a declaration of a contravention of s 298K of the Act, the Employment Advocate seeks an order imposing on each respondent a penalty pursuant to s 298U(a) of the Act, an order pursuant to s 298U(c) of the Act requiring the respondents to pay the 12 individuals compensation for the affect upon each of them of the contravening conduct and an order in reliance upon s 356(b) of the Act that any penalty imposed upon the respondents be paid to the applicant. 7 Section 298T(2)(d) of Div 6 of Pt XA provides that the Employment Advocate may apply to the Federal Court of Australia for orders under s 298U concerning conduct in contravention of Pt XA. By reason of s 298X, conduct in contravention of s 298K is not an offence under the Act. • On 18 and 19 January and 17 February 2000, Mr Blackadder prosecuted a proceeding under the Act against the Third Respondent seeking a reinstatement order, among other orders (s 298L(1)(j)). • On 29 March 2000, Mr Blackadder obtained the benefit of a reinstatement order of the Australian Industrial Relations Commission ('AIRC') (s 298L(1)(h)). • On 30 January 2000, Mr Hambly prosecuted that proceeding (s 298L(1)(j)). • On 14 February 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). • On 6 June 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)). • Mr Delaforce was both a member of the Australasian Meat Industry Employees' Union ('AMIEU') and a delegate of the Union at the workplace (s 298L(1)(a)). • Mr Delaforce was dissatisfied with his conditions and was seeking improved conditions of employment for himself and other employees at the abattoir (s 298L(1)(l)). 11 The applicant contends that Mr Ramsey acquired, reopened and commenced operating the abattoir in April 1998 expressly on the footing that particular workplace arrangements could be negotiated and approved by the AIRC and that Mr Ramsey's view as to the content and formulation of those conditions would, from time to time as he thought appropriate, endure so as to secure the profitable operation of the abattoir. 12 Participation by the AMIEU in negotiating the structural employment arrangements at the abattoir, participation by employees in the Union as a member or delegate, the expression of dissatisfaction with the content of the conditions of employment, steps taken to oppose approval of an enterprise agreement and steps taken to bring Australian Workplace Agreements to an end, all represented positions taken by particular employees that threatened Mr Ramsey's perceived criticality of the conditions and arrangements he preferred. 13 The facts therefore which are said to be probative of Mr Ramsey's reasons for the dismissal conduct are not confined to events immediately proximate to September 2002. The period of enquiry necessarily commences, it is said, in April 1998 when Mr Ramsey sought to establish the foundation employment conditions which influenced events throughout the period leading up to 2001 and throughout 2002. The evidence of those arrangements, the hostility of Mr Ramsey to a contrary view and those articulating it and the events that put Mr Ramsey, the AMIEU and each of the 12 individuals in particular controversy, are said to be facts from which inferences may be drawn of the prohibited reasons. Evidence of these facts are thus said to be admissible as evidence relevant to the proof of the fact in issue, namely, Mr Ramsey's attitude and reasons for carrying out the conduct. 14 Some of the evidence relied upon by the applicant raises the question of whether evidence of conduct or evidence of a tendency on the part of Mr Ramsey to act in a particular way, or to have a particular state of mind, is admissible for the purposes of s 97 of the Evidence Act 1995 (Cth). Apart from evidence said to be probative of a prohibited reason, the applicant relies upon a statutory presumption by operation of s 298V of the Act as a sufficient discharge of an onus cast upon it to establish, on the balance of probabilities, a contravention of s 298K(1). 15 All of these contentions are relied upon to support the proof of the reasons for the consequential conduct of refusing to employ 11 of the 12 individuals once re-engagement of the workforce began reasonably quickly after the termination conduct was effected. 16 The respondents challenge the admissibility of much of this evidence going to the historical events. Due to the events mentioned at pars 61 to 81 of these reasons, the parties agreed that objections to evidence would be dealt with in the reasons for judgment. Accordingly, rulings on objections to evidence are dealt with at the conclusion of these reasons as an Appendix. 17 Apart from the contended historical controversy between Mr Ramsey and the AMIEU and those individuals articulating a particular criticism of the employment arrangements, the Employment Advocate contends that Mr Blackadder, Mr Swain and Mr Hambly suffered termination of employment because each of them had sought and obtained the benefit of a reinstatement order by the AIRC arising out of an earlier termination in each case. In a similar sense, Mr P F McKenzie's proposal to give evidence in Mr Robertson's reinstatement proceeding is said to be a reason for his dismissal. The applicant contends that the relevant abattoir entity also refused to employ these men during the re-engagement period for the same reason. 19 The South Grafton Abattoir is a livestock slaughtering and meat processing facility which, like all abattoirs, exhibits a number of functional task-specific activities two examples of which are activities conducted in the slaughter room (or on the slaughter floor) and tasks performed in the boning room. The field of task-specific activities undertaken at the South Grafton Abattoir have been performed at material times by employees of each of the respondent companies. In or about August and September 2002 the cohort of employees performing these tasks was given notice that the employment of each employee had been terminated due to a stock shortage. 20 Within the cohort of employees dismissed from employment were each of the 12 individuals identified at [2] by reference to the particular respondent employer. The Employment Advocate contends, on the pleadings, that there was no stock shortage sufficient to justify the termination of employment of the cohort including each of the 12 particular individuals. The applicant therefore calls into question the accuracy of the explanation given by the respondent employers for the termination conduct. 21 The applicant contends that a reason or reasons for the termination of employment of the particular 12 individuals was a reason or reasons prohibited by s 298L of the Act and thus a contravention of s 298K(1) arises. In discharging the onus of establishing a contravention of s 298K in respect of each individual, the applicant relies upon s 298V of the Act. Since none of the respondent companies have rebutted the presumption, the section, it is said, does its work to establish that the conduct was carried out for a reason alleged. Notwithstanding that the Employment Advocate says it is enough to prove conduct and aver a prohibited reason, the applicant also relies upon material that is said to actually demonstrate a prohibited purpose. Both contentions are made in this case. The Employment Advocate contends that although it is not necessary to plead or prove the relevant person sought employment in order to establish a 'refusal to employ' for the purposes of s 298K(1)(d), Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Swain all sought employment at the South Grafton Abattoir in the period September 2002 to December 2002 and all were refused employment for a prohibited reason. 24 Similarly, the Employment Advocate contends that in respect of that conduct, the elements of s 298V have been satisfied and a statutory presumption arises which has the effect of discharging the onus of proof and thus establishing this further contravention. The evidence is said to establish a contravention in any event. 25 In answer, the respondents say this. 26 Because the starting point of an examination of the conduct of the respondents involves conduct concerning the termination of the entire cohort of employees at the South Grafton Abattoir at the material time, the respondents contend the termination conduct does not involve conduct directed to any one employee or a class of employees. Therefore, there is no conduct by an employer which can be characterised as discrimination or victimization of that employee. In other words, there is no conduct by a respondent employer qua an employee which attracts the operation of s 298K of the Act. That is said to be the end of the matter. 27 Section 298K, it is contended, must be read subject to the objects of Pt XA contained in s 298A and particularly s 298F which has the effect of importing into s 298K a central notion of discrimination against a person or relevantly identified class of persons as compared with others. Since the termination was ubiquitous, there was no threshold of discrimination or differential treatment. Accordingly, the statutory presumption has no role to play in the circumstances of this case. The Employment Advocate must discharge an onus of establishing the colour of the 'ingredients' (to use a term adopted by Dixon J in another context in The King v Hush; Ex parte Devanny [1932] HCA 64 ; (1932) 48 CLR 487 at p.507) of s 298K which involves establishing facts which would support an hypothesis that the conduct occurred for a reason or reasons falling within s 298L and only then could the presumption contained in s 298V arise or have a role to play. 28 The notion that the Employment Advocate might prove the conduct and simply allege a reason or reasons falling within s 298L and then stand on the presumption as a proper discharge of the onus of proof fails, it is said, to understand the proper role of s 298V of the Act. 29 In relation to the second contravention based upon the alleged refusal to employ 11 of the 12 individuals, the respondents say that as to Blackadder, his employment was continued notwithstanding the alleged dismissal. As to Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss and J K Young, the respondents say that each of those former employees was offered re-employment and in some cases the offers of re-employment were taken up and in other cases refused. In the case of Hambly, the respondents say that he was not offered further work after the termination, for reasons related to his work performance and conduct. As to Swain, the respondents plead that he contacted the abattoir by letter dated 12 September 2002 and again on or about 18 January 2003 and was advised that no work was then available. Accordingly, the respondents deny a refusal to employ. 30 The respondents say that upon a proper construction of s 298K in respect of the refusal to employ allegation, there is no demonstrated discrimination and thus no operation for the section or the statutory presumption contained within s 298V. The respondents say that the applicant bears an onus of showing there was a vacancy to be filled before a refusal to employ can be made out. 31 In response to the respondents' pleading concerning the circumstances of offers of work and acceptance of work, the applicant says that having regard to all the facts and circumstances of those offers, the offers were not genuine and therefore there was a continuing refusal to employ. As to the question of whether s 298K has no operation in circumstances where an employer terminates a cohort of employees, the Employment Advocate says that notwithstanding that all employees were terminated, it remains possible that a group of persons within the cohort of employees were subjected to conduct for a reason or reasons prohibited by s 298L. Section 298K, on its face, contemplates that there might be reasons which fall outside s 298L which might affect every employee but equally there might be reasons within s 298L in respect of particular employees which are an operative reason. The applicant says that since the employer is in the best position to know the field of reasons for the conduct and the operative reasons, the policy of the legislation is to invoke a statutory presumption once conduct for a reason constituting a contravention is alleged thus placing an onus upon an employer to rebut the presumption by adducing evidence of the reason. 32 In addition to these matters, the respondents plead a denial that there was no stock shortage sufficient to justify the termination conduct, plead a denial that the Third Respondent employed any employees at the material time and plead that the requirement of the Respondents for labour was dependant upon the requirements of the operator of the South Grafton Abattoir, Ramsey Food Processing Pty Ltd ('RFP'), for the acquisition of labour hire services from the Respondents and that RFP had no requirement for labour owing to the stock shortage. As to affirmative matters pleaded by the Respondents, no evidence was called by the Respondents to establish the facts pleaded. Counsel for the Respondents cross-examined two of the applicant's witnesses, Mr Davis and Mr Broadway and none of the former employees. As to denials, the applicant was put to proof. 34 At all material times, the AMIEU was seeking improved conditions for its members (and persons eligible to be members) employed at the abattoir. The agitation for improved conditions included matters such as higher wages, the retention of payment for waiting time, treatment of rostered days off, better sick leave provisions and the basis for payment of an incentive payment as a supplement to wages. The particular issue involved the payment of what is known as 'double overs'. 35 In late 2001, a consultative committee was established to negotiate a draft enterprise agreement with Mr Stuart Ramsey on behalf of the First and Third Respondents and the employee members included Delaforce, P F McKenzie and Moss. The committee sought from Mr Ramsey the improved conditions sought by the AMIEU. 36 In March or April 2002, the committee was replaced by a second consultative committee similarly established to negotiate a draft enterprise agreement with Mr Ramsey on behalf of the First and Third Respondents and that committee included Brooks, Campbell, M R McKenzie and J K Young. The committee sought, among other things, an increase in wages for employees of the abattoir. 37 A third consultative committee was established to negotiate an enterprise bargaining agreement with Mr Ramsey by which improved conditions were sought. The members of the third committee included Brooks, Delaforce, Forrest, Moss, J K Young and S J Young. 38 Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss, J K Young and S J Young were all members of the AMIEU and Moss and Delaforce were both delegates of the AMIEU at the South Grafton Abattoir. 39 The Notice of Termination was effected in August 2002 by pinning an undated notice on the abattoir noticeboard of termination due to a stock shortage and by sending letters to each employee dated 10 September and 13 September. 40 As to Mr Stephen Blackadder, the Employment Advocate contends that there has been a long history of disputation commencing, in essence, on 27 September 1999 when Mr Blackadder gave evidence in a proceeding commenced by Mr Swain against the First Respondent. On 5 October 1999, the Third Respondent terminated Mr Blackadder's employment and on 25 October 1999 Mr Blackadder filed an application pursuant to s 170CE of the Act against the Third Respondent seeking reinstatement. Those proceedings were progressed on 18 and 19 January 2000 and 17 February 2000. On 29 March 2000, the AIRC made a reinstatement order. Proceedings subsequently took place in the Federal Court concerning responses to the reinstatement order by the Third Respondent, performance of the order and related matters all of which are said to form the basis of a prohibited reason for a termination effected in August and September 2002. 41 Similarly, Mr Hambly and Mr Swain commenced, prosecuted and secured orders of the AIRC for reinstatement arising out of a termination of their respective employment which occurred in 1999. 42 Particulars have been pleaded of the various attempts by 11 of the 12 former employees (the subject of these proceedings) to secure employment commencing from the moment in time when the relevant employer entities sought to re-employ a workforce at the abattoir shortly after the termination of employment of the entire workforce in September 2002. In reviewing the evidence concerning those matters, I will deal with the precise chronology of events. The Third Respondent says it was not an employer at that time. 44 As to Blackadder, the notices of termination and termination itself are denied and the respondents say the question of whether Blackadder was dismissed is a question of law. 45 As to the employment relationship, the First Respondent admits it was an employer of labour at South Grafton Abattoir at all material times. The Second Respondent admits it was an employer but first became an employer from January 2002. The Third Respondent says it was but ceased to be an employer of labour on 3 September 2001. The Fourth Respondent admits it was an employer of labour at all material times. The respondents contend that certain transfers or assignments of the employment contracts occurred from one Ramsey entity to another. 46 The applicant contends that the purported transfer of employment of particular employees from the Third Respondent to the Second Respondent was ineffective as no consent was obtained from the employees and, operationally, arrangements between particular entities for the payment of wages was simply an administrative internal arrangement which did not alter the legal effect of the bilateral employment arrangement between the particular employer and each employee. 47 As to the role of the AMIEU, all four respondents deny the AMIEU was seeking improved conditions for its members (or potential members) employed at South Grafton Abattoir and deny Stuart Ramsey was so aware. 48 As to any inter-relationship between the AMIEU seeking improved conditions for those employed at the abattoir and the role of each consultative committee of employees, the First, Second and Fourth Respondents admit the formation of the first and second consultative committees to negotiate an enterprise agreement with Stuart Ramsey. All four respondents deny the members of the first consultative committee sought improved conditions also sought by the AMIEU. 49 All four respondents admit the second consultative committee sought an increase in wages in April 2002 for employees at the abattoir from Stuart Ramsey who was then acting on behalf of the First, Second and Fourth Respondents. All four respondents admit the establishment of the third consultative committee but do not admit any role for that committee in negotiating an enterprise bargaining agreement with employers of labour at the abattoir or the seeking of improved conditions. 50 As to the assertion of no stock shortage sufficient to justify the dismissal of the individuals, the First, Second and Fourth Respondents plead these facts. Ramsey Food Processing Pty Ltd ('RFP') operated the abattoir and engaged the First, Second and Fourth Respondents to provide labour deployed in the abattoir. RFP exclusively slaughtered and processed cattle for Ramsey Meats Pty Ltd ('RMPL'). In September 2001, the Third Respondent ceased and in January 2002 the Second Respondent became an employer of labour. From 30 August 2002, RFP ceased operations on the slaughter floor and on 2 September 2002 RFP ceased processing in the boning and processing areas of the abattoir. On or about 11 September 2002, RMPL commissioned RFP to slaughter and process cattle and RFP sought and acquired labour from the First, Second and Fourth Respondents that in turn sought labour from the labour market. 51 As to the re-employment conduct, the First, Second and Fourth Respondents admit that during September, October and November 2002 each of those respondents commenced re-employing labour at the South Grafton Abattoir. The Third Respondent denies it employed or was seeking to employ any labour at the abattoir during this period. 52 As to the prohibited reasons which are said to give the dismissal conduct and refusal to employ conduct its contravening character , the respondents say this. 53 As to Mr Blackadder, although all respondents deny Mr Blackadder's employment was terminated by the Third Respondent on 5 October 1999, all respondents admit that termination of employment was found by Commissioner Redmond to have occurred on 29 March 2000 at the initiative of the Third Respondent. The Third Respondent denies the conduct of dismissal of Mr Blackadder in August or September 2002 and says Mr Blackadder remained employed at all material times by the First Respondent. 54 All respondents deny the allegations of attempts by Mr Blackadder to secure employment or that Mr Blackadder was refused employment. Since the conduct did not occur, the respondents say no question of any operative prohibited reasons bear analysis. 55 As to Mr Hambly, all four respondents admit the foundation facts. However, the Third Respondent denies the dismissal of Mr Hambly for the reasons alleged and all four respondents deny that Mr Hambly was available for employment during the re-engagement period. A similar position is taken by the respondents in relation to Mr Swain and in his case the First Respondent denies dismissal for the prohibited reasons alleged and all four respondents deny Mr Swain was available for employment during the re-engagement period. 56 As to Mr Delaforce, all four respondents admit that Mr Ramsey knew Mr Delaforce was a member and delegate of the AMIEU at the workplace and a member of the first and third consultative committees. All four respondents say they did not know that Mr Delaforce was dissatisfied with conditions of employment at the abattoir or that he was seeking improved conditions for himself and other employees at the workplace. All four respondents admit that Mr Ramsey knew that Mr Delaforce sought to have his Australian Workplace Agreement ('AWA') terminated in 2002. 57 As to Mr Moss, similar admissions are made to that of Mr Delaforce. 58 The position taken in relation to Mr Brooks is reflected, in broad terms, in respect of the contentions made concerning Campbell, Forrest, M R McKenzie, P F McKenzie, J K Young and S J Young. By was of illustration, all four respondents admit that Mr Brooks was a member of the second and third consultative committees but say that they do not know and cannot admit whether Brooks was a member of the AMIEU or dissatisfied with wage levels paid by the abattoir. All four respondents acknowledge that Brooks sought to have his AWA terminated in July 2002 and all four respondents deny that Mr Ramsey knew of Brooks's membership of the AMIEU or any dissatisfaction he held concerning wage levels paid at the abattoir. The First Respondent (as the employer of Brooks in this example) denies dismissal for the alleged prohibited reasons and all four respondents do not admit that Mr Brooks was available for employment during the re-engagement period in September, October or November 2002. All four respondents deny the particulars pleaded concerning attempts made by Mr Brooks to seek employment. 59 This summary of the issues reflects a factual and legal controversy about which evidence was called (and might have been called) framed by a Further Further Amended Statement of Claim ('F F A S C') filed by leave on what amounted to the second day of the trial on 18 October 2005 (Document 142 on the Court file), a Further Amended Defence to the F F A S C filed by leave on 19 October 2005 (Document 143 on the Court file) and an Amended Reply (Document 141) filed on 18 October 2005. 61 These proceedings were commenced on 9 May 2003 and have been the subject of extensive case management. Some aspects of the interlocutory steps (but not all) are described at [38], pages 29-33 of McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 based upon a chronology put before me by the respondents as part of the respondents' application for non-party discovery and leave to issue subpoenas. 62 All of these steps demonstrate that the factual and legal controversy has been framed over a considerable period with many interlocutory orders directed to joinder of parties, amendments to the Statement of Claim, the filing of defences, amendments to the Defence, the provision of particulars, verified discovery, inspection, various interlocutory applications and the preparation of statements in support of the claim, statements in response and statements in reply. A considerable amount of time, energy, cost and intellectual effort has been directed by the parties to joining issue on the factual and legal controversy with extensive recourse to Court supervision and Court engagement. However, approximately one week prior to the trial a question arose as to whether the trial would proceed on the issue of the alleged contravention with a separate hearing on the issue of compensation. As to the question of bifurcating the issues, I indicated that I was not prepared at that late stage to separate issues and required the applicant to provide particulars of the compensation claim. The preparation for trial throughout proceeded on the footing that particulars of the compensation claim would be provided to the respondents prior to trial. By consent, the trial was adjourned to 12 October to enable particulars of the compensation claim to be provided to the respondents, discussions to take place between the parties as to a proposed Reply by the applicant to the Amended Defence of the respondents and to deal with objections to evidence with the trial to commence on Monday, 17 October. First, to plead material facts in response to paragraph 130 of the Amended Defence on the part of the respondents which sought to answer the allegations in respect of Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Susan Jane Young that these former employees had been offered or had accepted or rejected offers of employment at material times. Secondly, the Reply sought to raise the proposition that arising out of factual controversy reflected in the statements exchanged between the parties, the conclusion was open that the respondent had engaged in a further contravention of s 298K by altering the position of an employee to the employee's prejudice within the scope of s 298K(1)(c). 65 The essence of the Reply was to put in issue, as counsel for the applicant put it, 'whether or not what was offered to the named persons was, in fact, a genuine offer and whether what was offered amounted to a breach [of the Act] or not' (page 9, line 27 of the Transcript). After hearing counsel for the respondents opposing leave, I stood the matter down briefly and took the view that the responsive matters the subject of the Reply were within the scope of the existing factual controversy, that no prejudice was demonstrated to the respondents in giving leave and that the question of whether a further contravention based upon s 298K(1)(c) arose on the facts before the parties arising out of the statements was a conclusionary matter which could properly be raised. I gave short Reasons about those matters ( McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445) but directed that the third ground of contravention should be pleaded by way of a Further Further Amended Statement of Claim ('F F A S C'). I made it clear to counsel for the respondents that should the F F A S C raise further material facts which went beyond the scope of the facts raised in the statements exchanged between the parties, I would be willing to hear the respondents in relation to the F F A S C and determine whether the third ground of contravention should properly be the subject of leave in the context of the facts actually pleaded in the F F A S C as it emerged. The F F A S C was also to incorporate proper particulars of the compensation claim. 67 On Monday, 17 October at the commencement of the trial, the respondents opposed leave to amend the Further Amended Statement of Claim in accordance with a proposed F F A S C to introduce the third ground of contravention in reliance on s 298K(1)(c) having regard to what was said to be the proper understanding of the scope and construction of that provision and particularly the meaning of 'employee' in s 298K(1)(c). Extensive written submissions in support of the motion were provided to the Court. 70 It can be seen that apart from the question arising in connection with s 298K(1)(c) and whether it was appropriate to give leave to further amend the Amended Statement of Claim to allow the applicant to introduce the third ground of contravention having regard to the field of the existing controversy and the extent to which the respondents might suffer prejudice, the substance of the orders sought went to matters central to the factual and legal controversy the very subject of the proceedings and about which the parties had joined issue, participated in case management and directions orders and otherwise prepared the litigation for trial . 71 Senior Counsel for the applicant, Mr Martin SC, said that he was not in a position to properly argue the merits of the motion having only had, in effect, a number of hours to consider the orders sought by the motion. I stood the motion over until the following morning, 18 October but said that I was prepared to hear the respondents immediately on paragraph 5 of the motion which went to the proposed amendment to plead facts giving rise to the third ground of contravention based upon an alleged 'alteration of the position of an employee to the employee's prejudice': s 298K(1)(c). 72 After some argument, counsel invited me to stand the matter down for a short time and upon resuming, counsel for the applicant said that in order to avoid any delay to the trial of the action, the applicant would abandon any allegation of a further third contravention. Accordingly, the two grounds of contravention the basis of the proceedings prepared for trial, namely, alleged contraventions of s 298K(1)(a) and s 298K(1)(d) remained the subject matter of the trial. 73 In relation to the question of the motion generally seeking orders for the striking out of the Statement of Claim and the dismissal of the proceedings at large which was to be heard the following morning, I made observations to the effect that whilst I would hear counsel for the parties on the matter it seemed to me to be an inappropriate way to proceed at trial particularly having regard to the matters referred to at [61] and [62]. They seem to me to be submissions that ought to be put at the conclusion of the trial, at the end of the factual controversy when you can say the claim is either sustained or not sustained. But to incur the costs of bringing people to the cusp of the trial and then say, 'this is all misconceived', seems to me to be an odd way to approach the determination of justiciable issues in the Court. ' (Transcript; 17 October 2005, page 8, lines 37-47 and page 9, lines 1 and 2). The F F A S C also pleaded the material facts going to attempts by each of the 11 individuals to seek employment with the respondents. An Amended Reply was also provided to the Court which was responsive to the Amended Defence of the respondents of 22 March 2005. The Amended Reply pleads facts and circumstances directed to demonstrating that any offers of employment made, accepted or rejected by the 11 individuals were not genuine offers and therefore, in the premises, the respondents have refused to employ any one of the 11 individuals. 76 The respondents elected to adjourn generally the notice of motion and indicated that they would probably seek to agitate the motion at the conclusion of the applicant's case. 77 On the question of whether leave should be given to amend in terms of the F F A S C, counsel for the applicant said that the pleading of the additional facts as particularised raised no new assertions of fact as each set of the particulars was drawn from the material filed by the applicant in the respondents' possession and was consistent with the material filed in the affidavits of the named individuals (Transcript, page 14, line 44). Also, Mr Hatcher SC conceded that the material relied upon by the applicant was in the affidavits and conceded that if the Reply was putting in issue the genuineness of the offers of employment on the part of the respondents, no new issue was raised (Transcript, page 16, lines 1-3 and 45-47). It seemed to me that if the material facts now being pleaded arose out of the material already available to the respondents and the allegation was confined to that material, no prejudice to the respondents arose by giving leave (Transcript, page 19, lines 15-35). As to the Reply, the applicant's case on the Reply is that offers pleaded by the respondents nevertheless continued to constitute a refusal to employ during the relevant period because the offers were not genuine (Transcript, page 29 generally). 78 Having heard extensive argument on the proposed F F A S C and the Amended Reply, counsel for the respondents asked for the matter to be stood down briefly. Upon resumption, counsel for the respondents accepted that on the basis of the case put by counsel for the applicant in the proposed F F A S C, the respondents could not say that any material facts were introduced that put the respondents at prejudice in the conduct of the litigation: (pg 34, Transcript, lines 10-30). Having heard counsel for the applicant extensively on the amendments it seemed to me that the sequence of amendments throughout the pleading could be grouped into categories and I then dealt with the materiality of the amendments, the extent to which those amendments might be prejudicial in the conduct of the applicant's case, the extent to which the respondents proposed to press aspects of those amendments and the extent to which particulars might be given of a proposed paragraph 12A of the Further Amended Defence to the F F A S C. Each of those matters was resolved in argument before me to the satisfaction of the parties as a result of which I gave leave to amend the Amended Defence and directed the solicitors for the respondents to prepare a properly complying Further Amended Defence to the Further Further Amended Statement of Claim marking up the changes for which leave was given arising out of the argument before me on the proposed Further Amended Defence. That marked up document pursuant to leave given on 19 October 2005 was filed on 26 October and is document 143 on the Court file. The F F A S C was filed in final form on 26 October and is document 142. The Amended Reply was filed on 18 October and is document 141. Leave was given on 18 October to file a Further Further Further Amended Application ('F F F A A') which deletes relief in respect of the abandoned third contravention and abandons any claim in respect of Susan Jane Young based upon a refusal to employ. That document is document 139 on the Court file. Each party has provided submissions in the form of a schedule of objections to evidence filed by the opposing party identifying each ground of objection. In order to avoid any further delay in the conduct of the trial, the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment and proceed on the footing that although I would be aware of the objectionable material I would, plainly enough, not be influenced by or rely upon the material if I took the view that the objection taken was sound. At the close of the applicant's case, Counsel for the respondents sought to make a submission of no case to answer on the basis that in doing so, no election was being made not to call evidence. As a result, I then invited preliminary argument on the question of whether the respondents ought to be put to an election in making a no case submission. The respondents during the course of the trial had sought to agitate a notice of motion seeking orders dismissing the proceedings generally on the ground that no reasonable cause of action was disclosed, among other orders: see [68] --- [71]. Those questions focused upon limitations said to arise out of the formulation of the pleading whereas the no case submission involved a consideration of not only questions of law but also whether an assessment of the evidence adduced by the applicant disclosed a case to answer. Having heard argument on the question of whether the respondents ought to be put to an election, I made a ruling that I would entertain a no case submission but only on the basis that the respondents were put to their election. I said to the parties that I would provide reasons for putting the respondents to an election as a condition of entertaining a 'no case' submission, as part of these reasons. 83 Senior Counsel for the respondents was not prepared to make that election. Having determined that matter, Senior Counsel for the respondents indicated that he was not in a position to call evidence from the principal witness for the respondents, Mr Stuart Ramsey. Rather than force Counsel to open the case for the respondents, I granted Counsel the indulgence of adjourning the matter until the following morning. On the following morning, Counsel made an election not to call evidence and opened submissions in support of the 'no case to answer' proposition. At the conclusion of submissions in response by Senior Counsel for the applicant, I reserved the matter for determination subject to receiving further submissions from Counsel for the respondents in response to a document of the applicant described as ' Matters which were the Subject of Submissions [by the respondents] but for which no Direct Evidence can be Found' (Document 151), by 4 November 2005. The general rule of practice is that a 'no case' submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence ( Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham [1977] HCA 4 ; (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an 'inflexible rule' ( Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR 1 at page 7) and not necessarily the 'right course in every kind of case' ( Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must 'give way to particular circumstances' in the exercise of the discretion ( Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation ( Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case ( J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No. 2) (1992) 38 FCR 458. 85 Nevertheless, the generality of the usual practice is well recognised and approved by the High Court ( Stevenson v Barham (supra) at page 202; Tozer Kemsley & Millbourn (Australasia's Asia) Pty Ltd v Collier's Interstate Transport Services Ltd (1955 --- 1956) [1956] HCA 6 ; 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court ( James & Ors v Australia and New Zealand Banking Group Ltd (1985---86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7). 86 The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a 'no case' submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the 'no case' submission turns solely on a question of law or jurisdiction ( Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud ( ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff's claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of 'no case' to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J. 87 In this matter, the contention of the respondents of 'no case' involves an assessment of all of the applicant's evidence to determine whether the causes of action are established, what inferences might properly be drawn from the facts, whether the evidence of Mr Davis and answers given in cross examination ought to be accepted as to the attitude of the AMIEU in responding to the notices of a stock shortage and whether that conduct reflects an acceptance of a stock shortage, whether the evidence of an expert, Mr Broadway (and his report) ought to be accepted and if not, to what extent can statistical data contained in the report be relied upon, an assessment of what construct applies to the operation of the relevant sections of the Act relied upon by the applicant and in having regard to the differing contentions, whether the evidence establishes the case contended for by the applicant. 88 The case also involves an assessment of the facts and circumstances concerning 12 individuals and a consideration of each of the factors specifically relevant to each individual. Further, the respondents sought to bring on a notice of motion described at [68] during the trial period notwithstanding the extensive case management of the matter, leading to my observations at [73]. Although the invitation by the respondents to consider that notice of motion does not bear directly upon the question of whether the respondents ought to be put to an election in making a 'no case' submission, interruption to the conduct of the trial and the reception of evidence is an important matter. It seemed to me that no useful purpose of any kind would be served by entertaining a 'no case' submission involving a consideration of all of the matters I have mentioned without putting the respondents to an election. The inconvenience of assessing all of those matters, ruling upon the question and then receiving evidence from the respondents (if that course emerged) on all matters in controversy and then embarking upon a second assessment of all the evidence seemed to me entirely inappropriate. 89 Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that 'no case' to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins [2002] FCA 1503 ; (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6). 90 In this case, the respondents were provided with an opportunity to consider the question of the election in a measured way. Rather than require counsel for the respondents, Mr Hatcher, to open his case, upon ruling that an election would be required (and upon Mr Hatcher indicating that the respondents were not prepared to make that election), I adjourned the conduct of the trial until the following morning as Mr Hatcher's principal witness was not available. Upon the resumption of the hearing the next morning at 10.15am, Mr Hatcher made the election. 91 Mr Hatcher, having made the election, made extensive submissions in support of the application. Counsel for the applicant responded and Mr Hatcher made submissions in reply. In dealing with the disposition of the matter, I propose to review all of the evidence and the issues with a view to making final dispositive determinations on all matters. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory. In particular, where the moving party (in this case the respondents) contends that the evidence does not give rise to the inferences of fact alleged by the opponent (in this case the Trustees), it is appropriate for the trial judge to decide what inferences he or she would draw from the evidence and to act on those conclusions, if necessary to determine finally the issues in the case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the 'no case' submission rests on the grounds I have identified, '... it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298, by reason of the failure to call evidence' : Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel . None of the former employees were required for cross-examination in the course of the applicant's case. Their evidence is unchallenged and I accept it. The evidence is contained in the affidavit of Blackadder (Exhibit 6), Brooks (Exhibit 7), Campbell (Exhibit 8), Delaforce (Exhibit 9), Forrest (Exhibit 11), Hambly (Exhibit 12), M R McKenzie (Exhibit 13), P F McKenzie (Exhibit 14), Moss (Exhibit 15), Swain (Exhibit 17), J K Young (Exhibit 18), S J Young (Exhibit 19). In addition, there is an affidavit by Justin Davis who is a former Assistant Secretary of the 'Newcastle and Northern Branch of the AMIEU', an organisation of employees registered under the Act ('the Federal Union') and a former Assistant Secretary of the 'AMIEU Newcastle and Northern Branch', an organisation of employees registered under the Industrial Relations Act 1996 (NSW) ('the State Union'). 94 There is also an affidavit by Paul Brown who is a Union organiser with each of the two Unions described in [85] and an affidavit by Kathleen May Evans, the Secretary of the Federal Union. Neither Mr Brown nor Ms Evans were required for cross-examination. Their evidence is unchallenged and I accept it. 95 Further, there is an affidavit from John Graham Broadway exhibiting a report in which Mr Broadway seeks to express expert opinion based upon analyses of particular data to test whether there was, in the relevant catchment area, a shortage of stock for slaughter in the period leading up to the closure of the plant. The report seeks to address trends emerging from data in the period 13 September 2002 to 17 January 2003 concerning the profile and characteristics of the cattle slaughtered and processed at the abattoir. As to the evidence of Mr Davis, I accept his evidence and on the important question of the cross-examination of Mr Davis concerning the issue of the stock shortage and the re-engagement of workers, I will deal with that evidence in the course of dealing with those topics. 96 The respondents have made a number of objections to paragraphs of all these affidavits and in the case of Mr Broadway, the respondents say that no reliance should be placed upon any expression of opinion on his part on the ground that the report fails to meet the requirements of the Federal Court Practice Direction for the giving of expert evidence, that the report fails to properly deal with sources of information and that Mr Broadway's reliance upon those sources and the formulation of the report is essentially a piece of advocacy on behalf of the applicant rather than an independent report provided to the Court to assist the Court in the determination of matters in issue. 97 As I indicated at [81], the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment on the basis previously indicated. The position concerning the evidence of Mr Broadway is, however, dealt with in the body of these reasons. I propose to now deal with the evidence. In December 1997, Gilbertson closed the abattoir asserting failing profitability and substantial accumulated losses. 100 In approximately April 1998, the abattoir re-opened under new ownership and under the operational governance of Mr Stuart Ramsey acting on behalf of entities including Ramsey Food Packaging Pty Ltd ('Ramsey Packaging'), Ramsey Butchering Services Pty Ltd ('Ramsey Butchering') and Ramsey Food Services Pty Ltd ('Ramsey Services'). 101 Prior to closure, Gilbertson had operated the abattoir in accordance with a 'certified agreement'. The parent award for the purposes of the certified agreement was the Butchers' Wholesale (Newcastle and Northern) Award , a New South Wales State Award ('the State Award'). 102 Apparently, with a view to achieving greater flexibility in the use of labour than Gilbertson had enjoyed, Stuart Ramsey, prior to re-opening the abattoir, participated in exchanges commencing in March 1998 with Ms Kathleen Evans, Secretary of the Newcastle and Northern Branch of the AMIEU registered under the Workplace Relations Act 1996 concerning a possible enterprise agreement with the Ramsey employer entities. 103 The Union proposed certain terms, a formulation for the operation of an incentive or 'tally' system of supplemental remuneration and conditions drawn from the State Award all of which would be consolidated and submitted to the New South Wales Industrial Relations Commission for ratification. 104 No agreement was reached. 105 Rather, Ramsey Packaging, Ramsey Butchery and Ramsey Services entered into a series of Australian Workplace Agreements ('AWAs') with their employees at the various functional levels of operation of the abattoir. 106 There are many functional activities and a corresponding demarcation of tasks within an abattoir but two of the major functional activities occur on the slaughter floor where an animal is killed and dressed and in the boning room where meat is taken from the bones. Some boning tasks are undertaken within the slaughter room. One such task is the removal of meat from the bones from the neck to the ribs, a task described as 'hot neck boning'. In each section, employees are allocated to work stations and the carcass is transported to the work station by a moving chain. The number of cattle processed in a day, the speed of the chain and the number and allocation of employees to particular work stations on the chain will largely determine the daily production of product and influence the remuneration of employees. 107 The daily remuneration of employees on the slaughter floor and in the boning room is made up of a wage component and, importantly, an incentive payment based on a 'tally system'. Under the tally system, each slaughter person is a member of a team working on the 'slaughter floor' or in the 'slaughter room'. 'Tally' means the minimum number of cattle to be processed by each slaughter person each day. Under the prevailing State Award, each beast was allocated a unit value irrespective of the weight of the animal. The unit value was 1 unit for each beast. The daily tally or required slaughter 'quota' was 23.1 units (beasts) for each slaughter person. Tally slaughtering for the South Grafton Abattoir is nominally 19 beasts and therefore 19 units but supplemental units due to the advantage of mechanical aids for workers yields minimum beasts for tally of 23.1. Every beast slaughtered in excess of the tally, attracted a payment called 'overs' at a rate of 150% of the daily unit rate. Once the number of beasts slaughtered exceeded 46.2 (in unit value), 'overs' would then be calculated at 200% of the daily unit rate ('double overs'). Every member of the team on the slaughter floor had an incentive to maximise the team's aggregate 'overs'. 108 A typical calculation of daily tally entitlements for slaughter persons would be this. Units would be allocated according to weight ranges for sides of cattle with heavier sides attracting greater units. An example of unit allocations for boning room purposes is this. 112 On 13 May 1998, Ms Evans on behalf of Union members employed at the abattoir who had requested the AMIEU to act as their bargaining agent wrote to the Employment Advocate opposing registration of each AWA on the ground that the tally system under the AWA allocated tally units by weight range with lower unit values for beasts in the weight ranges typically slaughtered and boned at South Grafton Abattoir (and therefore producing lower incentive payments as compared with the award). Two further matters of concern were, no wage increases above the weekly wage for each classification for the life of the AWA and lower shift allowances. 113 The Employment Advocate referred each AWA to the AIRC for an approval hearing. On 19 August 1998, Ms Evans wrote to Mr Ramsey noting Mr Ramsey's position that he would shut the abattoir if the AWAs were not approved. Ms Evans suggested talks aimed at creating a single collective agreement. Mr Ramsey responded requesting the names of Union members and Ms Evans declined to provide those details as the Union was proposing a negotiated certified agreement and not a role as a bargaining agent requiring disclosure of each 'principal' employee. 114 The AWAs are all in a similar form. (NOT Hotneck boning) Boner 2 Terrence Anthony Brooks Butcher Obtained a permanent position at the abattoir when the Ramsey group of companies took over the abattoir in 1998. He applied for and obtained a position there as a slicer. 3 Rodger Charles Campbell Commenced as a loader of meat but progressed to hot neck boning on the slaughter floor. Continued hot neck boning when the abattoir resumed under the Ramsey Group. 4 Michael Robert McKenzie 1983 --- commenced as a boner and worked mostly in the boning room Continued 5 Paul Francis McKenzie 1987-1997: boner Boner 6 Trevor Glen Moss 1992-1997 --- boner boner 7 Gregory Simon Forrest Commenced 1994. started as a labourer and later became a boner Boner. Packing duties (after injury) April --- August 2002; Picking up bones and fat scraps from the floor and pushing beef along the rails. At that time, Mr Davis provided workers with a form to sign appointing the AMIEU as a bargaining agent on behalf of employees for the purposes of s 170VK of the Workplace Relations Act . 96 employees signed the appointment form including Brooks, Campbell, S J Young, J K Young, Forrest, Moss, M R McKenzie and P F McKenzie. 117 On 17 and 18 September 1998, the AIRC heard argument on the question of whether the Commission ought to approve the AWAs. The AWAs had been referred by the Employment Advocate to the AIRC because of concerns that the AWAs failed to pass the 'no-disadvantage test' as compared with the relevant award. Mr Davis appeared as bargaining agent and represented the Union and a number of Union members who had signed the appointment form. The form was tendered at the hearing and a copy was given to Mr Ramsey's representative. Mr Davis made submissions to the AIRC and adopted the reservations expressed by the Employment Advocate. The Commission noted that the AWAs were in the same terms and involved three different employer entities, although members of the one group. 118 The Commission concluded that because the tally system adopted by the AWAs was more disadvantageous to employees than the relevant award with a follow through effect upon benefits calculated on actual income such as long service leave, the AWAs did not satisfy the no-disadvantage test whether compared directly with the relevant award or certain undertakings offered by the employer group. Notwithstanding that finding, the Commission was then required to consider whether it was nevertheless 'not contrary to the public interest' to approve the AWAs. 119 The Commission noted the need for the enterprise in the local area, approval of the AWAs would assist employment at the enterprise, an economic need for the employer to conduct the enterprise on the basis of the AWAs, the employer's statement that the enterprise would not re-open without the economic benefits conferred by the AWAs and that approval of the AWAs would assist a framework for cooperative workplace relations. Although the Commission discounted aspects of the argued economic need and the concern about not re-opening without the AWAs, the Commission found on 23 October 1998, that notwithstanding the disadvantage arising out of the comparative analysis, it was not contrary to the public interest to approve the AWAs coupled with the particular undertaking offered by the employers. Those undertakings were that if the State Award proved to be the relevant award for the non-disadvantage test, the employer entities would pay shift allowances to shift work employees at no less than the rate prescribed by the State Award and, alternatively, if the Federal Award proved to be the relevant award, the employers would pay those allowances in accordance with the Federal Award provisions. 120 Each AWA had a nominal term of three years from, by and large, the end of April 1998 although each AWA would remain in place after the date of nominal expiry until such time the AWA was replaced or terminated. 121 In October 2000, Mr Davis formulated a letter for Mr Moss to send to the Employment Advocate making enquiries as to the date of expiration of his AWA. The response from the Employment Advocate in early November 2001 provided a template for attachment to a circular for distribution to workers at the abattoir inviting workers to appoint the AMIEU and Mr Davis as a bargaining agent with the Ramsey employer entities under s 170VK of the Workplace Relations Act . The form was described as an 'Important Notice to the Employees of the Ramsey Group of Companies' and asked the question, 'Who will bargain for you when your AWA expires? ' The copy of the notice/circular attached to Mr Davis's affidavit is dated 29 January 2001. 122 A reference to Mr Moss's name in the letter from the Employment Advocate was not deleted. 100 copies of the circular were given by Mr Davis to Mr Delaforce and Mr Moss for circulation to employees. As the nominal expiry date of the majority of the AWAs approached, Mr Davis made frequent visits to the abattoir, met workers, consulted with Union delegates, Jim Delaforce and Trevor Moss, and engaged in meetings with groups of employees including Stephen Blackadder and Colin Hambly. 123 On 15 February 2001, Stuart Ramsey convened and addressed a meeting of employees at the abattoir. Mr Ramsey observed that many employees apparently believed a new agreement would be in place during April 2001 but said the new agreement would not be proposed until October. The six month delay was attributed to the conduct of the AMIEU and Mr Davis opposing the approval application concerning the AWAs before the AIRC the subject of the decision on 23 October 1998. The three year term would thus expire in late October 2001. 124 On 14 February, the day before the meeting, Mr Davis attended the abattoir for the purposes of conducting a WorkCover safety inspection. If he hadn't opposed us it would be up in April so it cost us too much money to fight them so that's where your damn rises went. The meeting took place in circumstances where Mr Ramsey understood the employees believed a new agreement would be forthcoming between the employer entities and the workforce in April. Mr Ramsey took the opportunity not only to explain the October timing rather than April but also to ex temporise his views concerning preferred elements of the relationship with the workforce, his attitude to the Union and those factors which ought to influence a new arrangement for later that year in October. 126 Mr Ramsey spoke of the need to avoid a 'you' and 'us' attitude, expressed strong reservations in strident language concerning the role and conduct of Mr Davis in handing out Union forms and expressed his acceptance of employees signing those forms. As to the role of the Union, Mr Ramsey said, '... but if you want to negotiate with us and have some meaningful negotiations, the greater would be advised not to be a member of the Union I'd say ... all he (Davis) has done at this stage is cost us money'. 127 Mr Ramsey expressed further criticisms of Mr Davis and said, '... now with this from now on, we'll be taking the tally of two boners off. If we've got 22 up, will only bone enough for 20. That fella comes back on here again, there'll be less again'. In other words, even though the boning team might comprise 22 boners, the number and weight of sides would be controlled so that the total units available to the team would equate to 20 boners and if Mr Davis was to come back on site, '... there'll be less again'. 128 In Mr Ramsey's view, the Union had cost the employer group $500,000.00 and tally entitlements would have to be managed by controlling the throughput of sides. Mr Ramsey said, 'If you didn't have that arsehole coming in here ... we wouldn't have any trouble'. 129 In an apparent contradiction to his earlier stated position of being relaxed about employees signing forms circulated from the Union, Mr Ramsey also said, 'No need for you blokes to be members'. Leaving aside the unfortunate vituperative language, Mr Ramsey's advice to the employees was this [paraphrasing]: you don't want a Union official telling us what to do and making it impossible to function and ... every single abattoir closure was under that Union. 130 The comments made by Mr Ramsey to the meeting on 15 February were tape-recorded and a transcript of Mr Ramsey's statements is in evidence. 131 There can be no doubt that Mr Ramsey at this time harboured considerable hostility towards Mr Davis and the role Mr Davis and the Union had played in the industrial arrangements between the employer group of companies and the abattoir workforce. This hostility emerged expressly in the context of a discussion between Mr Ramsey and the workforce about the approach which should influence the upcoming arrangements in October. In part, this hostility was expressed to be a legacy of the earlier experience of the employer companies in facing Union opposition to the approval of the AWAs and the costs burden of that opposition. Nevertheless, there can be no doubt that Mr Ramsey at this time was hostile to the engagement by the Union in the industrial relations between the employer entities and the employees. 132 On 3 October 2001, Mr Delaforce (among other employees) was handed a proposed Certified Agreement by the employer companies. It was headed 'Notice to Employees of Ramsey Group of Companies --- 2 nd October 2001'. It proposed a vote on the agreement on 18 October 2001. The methodology was to take the prevailing AWAs and adopt certain variations to those instruments as the terms and conditions of the agreement. 133 Shortly after 3 October, a meeting of abattoir workers occurred chaired by Mr Paul McKenzie. There were 22 to 24 boners, 20 slicers, 18 slaughter persons and follow-on labourers and other employees, present. 134 At this meeting, a decision was taken to establish a consultative committee to negotiate aspects of the proposal with Mr Ramsey. Mr McKenzie suggested the Union delegates, Mr Delaforce and Mr Moss, be members of the committee. The members of the committee were Mr Moss, Mr Paul McKenzie, Mr Mackay and Mr Delaforce (as boners' representatives), Mr Morrow (as a labourer's representative), Mr Whetton (Offal Room representative), Mr Weier, Mr Colling and Mr Tim Blackadder (brother of Stephen Blackadder) as Slaughter Room representatives and Mr Weate. 135 As Union delegate, Mr Delaforce was the main spokesperson in talking to workers at general meetings concerning deliberations of the committee. Mr Paul McKenzie and Mr Moss also addressed general workers' meetings on the issues. Mr Davis was not a member of the committee although at meetings with members of the committee off the abattoir site Mr Davis provided commentary, advice and analysis of Mr Ramsey's proposals on such conditions as rostered days off, waiting time, double time for overs and increases in pay. AMIEU circulars prepared by Mr Davis were given to Mr Delaforce and Mr Moss and on some occasions to Mr Paul McKenzie for distribution to workers in the canteen during breaks. 136 Mr Delaforce was dissatisfied with working conditions for a number of reasons. He says this. His level of wages had not increased since the commencement of the AWA in 1998. The wage rate was fixed. Secondly, the number of tally units for the purposes of the incentive scheme under the AWA were not as favourable as the award. Thirdly, manning levels in the boning room were entirely within the discretion of Mr Ramsey. Mr Delaforce says there were 14 boners at the start of the AWAs and eventually 18 boners in the big boning room and 6 in the small boning room. The level of wages was affected by the composition of the boning rooms because the availability of overs depended upon the total amount produced per boner averaged over the number of boners. If the number of boners increased, the average output per boner would be lower and the incentive or tally component of the employees remuneration would be lower. 137 Mr Delaforce was dissatisfied with the first proposal because the incentive scheme would continue as formulated under the AWA, that is, under conditions less favourable than under the award notwithstanding that the base wage rate component would be increased. The proposal was more attractive to labourers not participating in any tally-based incentive scheme. 138 The AMIEU urged the incentive scheme based on the State Award which provided a higher payment for boners and slaughter workers than would be available under the agreement proposed by Mr Ramsey. Mr Davis on behalf of the AMIEU prepared a comparative table of the operation of the tally system under the proposed certified agreement and the State Award. The comparison suggested a more favourable outcome under the award. 140 The analysis was shown to Mr Paul McKenzie and explained to employees in general meeting. 141 Further, according to Mr Delaforce, Mr Ramsey's proposal would restrict other entitlements relating to rostered days off and would involve the abolition of 'waiting time', that is, payments for down time or interruptions. Employees paid on a tally system such as boners and slaughter persons might therefore be prejudiced by the abolition of waiting time as their total remuneration was based on actual production. Further, Mr Ramsey's proposal involved the abolition of double overs. This proposal affected slaughter persons but not boners. Lastly, the proposal did not contain a grievance procedure. 142 These matters and particularly the complaint of no 'wage' increase since 1998 were discussed at the consultative committee meetings. There were eight such meetings. Mr Moss and Mr McKenzie and Mr Mackay primarily spoke at committee meetings to the above concerns which were identified generally in accordance with advices from Mr Davis on behalf of the AMIEU. 143 The management representatives on the first committee were Mr Ramsey, Mr Paul Marshall (Accounts Clerk), Ms Renee Mortimer, Mr Paul Allen and Mr Steve Beeston (for a part of the time), Slaughter Floor Supervisor. 144 At these meetings, the various issues of concern previously mentioned were raised including banking of rostered days off, proposed reductions in sick leave entitlements and the number of boners making up boning teams. 145 On 5 October 2001, Mr Davis wrote to Mr Ramsey giving notice that he intended to exercise powers under the Workplace Relations Act 1996 to meet with the workers on site on Tuesday, 9 October 2001. Mr Ramsey replied on 5 October nominating 12 noon as the time for the meeting and requesting the Union not to enter the site prior to 11.45am. 146 On 9 October 2001, Mr Davis conducted a meeting at the abattoir to discuss the proposed Certified Agreement with those workers who had elected to attend the meeting. At that meeting, Mr Davis supplied a form for employees to sign calling upon the Ramsey Group of Companies on behalf of the signatories to explain the proposal prior to a vote being taken and to meet with officials of the AMIEU and elected representatives of the employee group to discuss the agreement. 78 employees signed the form including Forrest, S J Young, J K Young, Delaforce, P McKenzie, Campbell, Moss, Brooks and Hambly. A copy of the form as signed was given to Ms Renee Mortimer and Mr Beetson. 147 On 9 October 2001, Mr Davis again wrote to Mr Ramsey advising of his intention to meet with workers during meal breaks and other breaks at the abattoir on 15, 16, 17, 18 and 19 October 2001. Mr Davis referred to earlier discussions with Ms Mortimer, confirmed the request of a significant number of employees that the company meet and confer with the AMIEU concerning the proposed Certified Agreement, confirmed the provision of a copy of the signed request to Ms Mortimer and purported to rely upon provisions of the Act compelling the employer entities to explain the content of the proposal (s 170LK(7) and s 170LT(7)). 148 On 11 October 2001, the solicitor for the Ramsey Group of Companies, Mr Hannigan responded advising that the employer entities intended to vary the terms of the proposed Certified Agreement and the ballot nominated for 18 and 19 October 2001 would be cancelled. Mr Hannigan noted that attendance by the AMIEU at the abattoir throughout the week commencing 15 October 2001 would not be necessary. 149 Apart from Mr Hannigan's letter, Mr Ramsey advised the first consultative committee that the employer companies would not proceed with the first proposal and would consider a new proposal based on the State Award. Again, there was discussion about the content of what might be in the new proposal including adjustments to wages, rostered days off, sick leave entitlements, waiting time, manning levels and other matters. 150 On 16 or 17 October 2001, the employer companies distributed a second proposal for an enterprise agreement. The proposal was distributed with payslips to employees. Mr Delaforce says he was dissatisfied with the second proposal. He understood the only change from the first proposal was that the new document provided for a base wage rate consistent with the State Award plus a loading of $25 per week. Mr Delaforce understood the second proposal to adopt the same incentive scheme as the AWA. Other features remained the same as the first proposal, as he understood it. 151 An AMIEU document prepared by Mr Davis entitled 'AMIEU Summary of Ramsey's Second Proposal for an Enterprise Agreement' criticised the changes to rostered days off, removal of waiting time, removal of double 'overs' payments, the adoption of base weekly wage rates by reference to the State Aware rather than the Federal Award, freezing of allowances, cuts to sick leave, changes to the grievance procedure, no right to family leave to care for relatives and the introduction of an attendance amount. In addition, the AMIEU was critical of the shortage of stock stand-down proposal. Under the Ramsey proposal according to the AMIEU, a shortage of stock could be declared at any time which would give the employer the right to stand all workers down without payment whereas the State Award required continuing payment as casuals in the days worked by employees in a short week. 152 Mr Davis prepared a comparative table headed 'Comparison of Key Wages Rates' which compared the wage rates of slaughter persons, boners, slicers and slaughterhouse labourers under the Federal Meat Industry (Processing) Award 2000, the State Award and the AWAs. A copy of the comparative table was given to members of the first consultative committee, Delaforce, Moss, Paul McKenzie, Forrest, Colling and Mackay at a meeting on 24 October 2001. The comparison suggested remuneration rates payable under the Federal Award were the most favourable followed by the State Award with the AWA remuneration the least favourable, in the view of the AMIEU. 153 The second proposal was to be voted upon by employees on 5 November 2001. As to the AMIEU summary of the first proposal, the AMIEU encouraged further discussion of the proposal and encouraged employees to seek an explanation of the proposal from the employer companies. As to the second, the AMIEU encouraged further discussion but also urged a 'no' vote concerning the second proposal. 154 A third proposal then emerged dated 8 November 2001 on behalf of the employer entities which reflected a further change. Consistent with the earlier approach, the methodology was to adopt the content of the previous AWAs subject to nominated proposed changes, put the proposal to a vote (this time on 26 November 2001), secure a collective enterprise agreement by majority ballot and submit the agreement to the AIRC for certification. The explanatory memorandum distributed by the employer entities identified 12 amendments to the previous AWA. 155 As to the remuneration proposal, the amendments proposed a minimum rate of pay in accordance with the weekly wage rate reflected in the State Award with increases in the State Award to be passed on. All calculations of allowances and tally would be adjusted using the State Award. 156 The vote took place on 26 November 2001. The agreement was accepted by a majority of 99 to 59. 157 On 18 January 2002, the AIRC conducted a hearing of an application by Ramsey Packaging, Ramsey Food Packaging No. 2 Pty Ltd, Ramsey Services and Paul Allen Contracting Services Pty Ltd for certification of the enterprise agreement. The applicant entities were represented by Mr Hannigan instructing Mr Hatcher. Mr Davis sought leave to appear on behalf of the AMIEU on the hearing so as to represent employee members of the Union and tendered the documents signed by employees arising out of the meeting on 9 October and the correspondence between the Union, the Ramsey Group of Companies and Mr Hannigan. The applicants resisted the Union's application for leave in part on the ground that withdrawal of the earlier proposed enterprise agreements and substitution with the third proposal brought any appointment of the AMIEU by relevant employees to an end and, in part, on the ground the AMIEU had 'no standing' to apply. Commissioner Bacon concluded that the AMIEU had been properly requested to represent members of the Union extending to the third agreement consistent with the provisions of the Act and granted leave to the AMIEU and Mr Davis to intervene in the application. 160 The Ramsey Companies sought to determine clearly whether the AMIEU supported or opposed certification of the agreement. The AMIEU pressed the difficulties identified at [158] and [159]. 161 On 21 January 2002, the AMIEU circulated through Mr Delaforce, Mr Moss and Mr Paul McKenzie, a report of the proceedings before Commissioner Bacon highly critical of the conduct of those proceedings by the employer entities. 162 On 8 February 2002, Commissioner Bacon published his decision on the certification application concluding that the four employer entities did not constitute a common enterprise for the purposes of s 170LB(2) of the Act and referred the application to the Full Bench. Commissioner Bacon also gave reasons for the intervention ruling in favour of the AMIEU confirming the continuing standing of the AMIEU to represent employee members of the Union in connection with the third proposed enterprise agreement. 163 On 19 February 2002, the Union pressed its position with Mr Ramsey by writing to him drawing his attention to Commissioner Bacon's decision, enclosing exhibits tendered by the AMIEU including the list signed by 78 individuals appointing the Union on their behalf and agitating for an opportunity to meet and confer with employer representatives in relation to the matter. The Union put Mr Ramsey on notice that it would require his attendance at the hearing before the Full Bench on 3 April and to that end the Union would issue a summons to secure Mr Ramsey's attendance. The Union also drew attention to a company search of one of the applicant companies, Ramsey Food Packaging No. 2 Pty Ltd , and noted its date of registration as 4 December 2001 . The Union sought clarification of how that entity had a cohort of employees employed at the date of the vote on the agreement, namely, 26 November 2001, having regard to the registration date of the company. Ms Mortimer on 5 March nominated a meeting date of Friday, 22 March at the plant. The Union responded advising that Mr Davis would be available and in attendance with him would be Union delegates, Mr Delaforce and Mr Moss. 164 On 15 February 2002, a meeting took place at the abattoir between Renee Mortimer, Stuart Ramsey and Warren Morrow, Delaforce, Moss, Weier, Colling, Beetson, Broadrick and Paul Marshall. The meeting was convened by Mr Ramsey, as he explained, because the AIRC had referred the certification application to a Full Bench due to the participation of multiple employers. Mr Ramsey emphasised a need to secure the structural changes sought by the agreement and said that intervention and opposition by Mr Davis had delayed the matter. Mr Ramsey was upset by that opposition. Committee members on behalf of the employees said they considered they should go back to the award. Mr Ramsey said the employees could have their notice now if they elected to go back to the award because 'the company could not continue'. Some heated exchanges occurred between Mr Moss and Mr Ramsey about these matters. Mr Ramsey said the actions by Mr Davis on behalf of the AMIEU were a 'vendetta against him personally' and the Ramsey companies 'would not deal with Mr Davis'. 165 Mr Ramsey said he would deal with the AMIEU as long as it was not Mr Davis who represented the Union. Mr Ramsey was emphatic in his position that if the award governed the conditions, the abattoir 'would not be viable'. Mr Delaforce expressed concern about the operation of the tally system and the number of boners included in the calculation. Mr Morrow questioned whether 'attendance payments' might be made and whether wages could be increased since the AWA did not provide for any increases. Discussion occurred concerning the new 'No. 2' entity. The detailed notes of Mr Paul McKenzie and Ms Renee Mortimer concerning the meeting are in evidence. The meeting was heated and apparently difficult. Plainly enough, it raised a number of issues of significant interest to the employee representatives of the consultative committee, going to working conditions. 166 Shortly following the meeting on 15 February 2002, the boning room employees met and resolved to dissolve the consultative committee. A notice was distributed to employees of that decision which recited conduct on the part of management. Mr Ramsey encouraged continuing engagement by the consultative committee. Mr Delaforce responded advising that the decision of both boning rooms was unanimous, the attack upon Mr Moss was perceived by the meeting to be 'disgraceful verbal abuse' by Mr Ramsey, continuing communication was nevertheless desirable and that Union representation in the process might 'help maintain lines of communication'. 167 On 22 March 2002, Mr Davis attended a meeting in the meal room of the abattoir with representatives of management, Mr Beeston (slaughter floor supervisor) and Ms Renee Mortimer. Mr Delaforce, Mr Moss and Mr Forrest were present. Mr Davis suggested that the AMIEU would support the proposed certified agreement at the hearing before the AIRC on 3 April 2002 provided the employer entities accepted a proposed Memorandum of Understanding ('MoU') with the AMIEU on behalf of member employees. 168 The elements of MoU included terms that the AMIEU would work through employee Union delegates to resolve grievances, the employers would deal with elected Union delegates in relation to grievances, the AMIEU would raise any issue, dispute or grievance with the employer entities prior to any visit to the abattoir premises, the companies would deal with grievances in a timely way and provide proper notice to the AMIEU (3 days) and the employers would facilitate meal breaks for all operational units of the abattoir at a common time so that employees could all meet to discuss relevant issues with the Union. 169 In April 2002, Mr Delaforce attended a meeting of workers at the abattoir. At that meeting it was resolved to establish a second consultative committee. The members elected were Mr Michael McKenzie, Mr Terry Brooks, Mr Rodger Campbell, Ms Shannon Tough, Mr Robert Colling, Mr Brian Weier and Mr John Young. This consultative committee lasted for approximately two weeks. Neither Mr Davis nor any other full time officer of the AMIEU was a member of the second consultative committee. Nevertheless, the AMIEU met off-site with Union members of the abattoir and prepared material comparing the proposed enterprise agreement with the terms and conditions reflected in the award. In particular, Mr Davis prepared a comparative table demonstrating his assessment of the operation of the tally system under the award and under the proposed certified agreement. Waiting time remained a contentious issue. 170 On 3 April 2002, the Full Bench of the AIRC heard the application by the Ramsey companies and Paul Allen Contracting Services Pty Ltd for certification of the agreement. The application was withdrawn. 171 On 11 April 2002, Mr Delaforce received a notice sent to all salaried staff from Mr Ramsey concerning the introduction of a 'bonus system'. In addition to the rates of pay provided for by the AWAs, the employer entities proposed additional wages by way of a bonus system of $95 per five day week for slaughtermen and boners, $90 for slaughter floor tally labourers and slicers, $80 for production labourers and various rates for juniors. After the first few weeks of operation of the system, Mr Delaforce says he was rarely paid the bonus. Apart from the first two weeks, notices were placed on the abattoir noticeboard stating that the yield had not been achieved for the week. Mr Michael McKenzie and Mr Campbell were also critical of the proposed bonus system. The notice introducing the bonus system explained the context, ' As you may be aware, the Application to have a Certified Agreement has been withdrawn. Upon learning the AMIEU opposed the wage rises contained in the Certified Agreement and the Certified Agreement itself, we withdrew the Application to enable you to receive some benefits sooner rather than waiting for further hearing days of the Commission. Those present included Mr Ramsey, Mr John Broadrick, the Boning Room Foreman, Mr Paul Marshall, the Management Accounts Clerk, Ms Renee Mortimer, Mr Campbell, Mr Brooks and others. Complaint was made about the bonus system and the failure to guarantee CPI wage increases. Mr Ramsey maintained that the bonus system gave increases. Employee representatives objected to the conditional and qualified operation of the bonus system. Mr Ramsey was given a proposal by the committee and requested to consider it. The proposal had four elements, namely, current AWA conditions to be confirmed, wage rates to be increased to the equivalent of the State Award rate and all CPI increases to be passed on as they are approved by the Commission, manning levels to be maintained at 17 slaughtermen and 22 boners for the respective functional areas and finally, a request that management consider paying an attendance bonus. After the meeting with Mr Ramsey, the second consultative committee members met with all workers at the abattoir and gave the employees a report of the meeting. 174 On 7 May 2002, Mr Ramsey responded by placing a letter on the abattoir noticeboard addressed to the consultative committee members. Mr Ramsey's response emphasised the need to operate the abattoir efficiently and profitably and said, 'Rostered days off and sick leave are a problem in running the workplace on a day to day basis. Whilst management have aims with manning levels in the slaughter floor and boning rooms, this is purely a management matter. Please detail any further proposals you have, including the abolition of rostered days off and the lessening of sick leave'. Mr Ramsey also asked for precise details of the membership of the second consultative committee, the basis of election, status of Union members and the voting results on resolutions. 175 During May, June and July 2002 meetings took place between Mr Davis and Union members employed at the abattoir. Copies of a form providing employees with an opportunity to appoint the AMIEU on behalf of workers to apply for termination of the AWAs were distributed to abattoir employees by Mr Delaforce and Mr Moss. 176 On 14 May 2002, Mr Delaforce and Mr Paul McKenzie collected complaint forms from all production employees and lodged them with the office of the Employment Advocate. Mr Delaforce then requested the assistance of the AMIEU in making an application to the AIRC for termination of the AWAs. 177 On 30 July 2002, Mr Davis lodged an application with the AIRC on behalf of 127 employees seeking termination of their AWAs. The grounds included that, the AWAs continued to fail a no disadvantage test, employees had not received an increase in the base rate of pay for four years and three months, the certification application in respect of the enterprise agreement had been withdrawn from the Full Bench before a determination could be made by the Commission (in circumstances where the employees had appointed the AMIEU to act as a bargaining agent for a certified agreement) and in the absence of the AWAs, wages payable to employees under either the State or Federal Award would be higher than the agreement. Additionally, employees would have the benefit of a binding arbitration mechanism concerning disputes and grievances should the AWAs be terminated. 178 On 8 August 2002, Mr Davis wrote to Mr Ramsey seeking an urgent time to meet and discuss conditions. Mr Hannigan responded seeking an adjournment of the termination application. The AMIEU refused to adjourn that matter and sought a meeting by letter dated 26 August 2002. Mr Hannigan on 26 August advised that Mr Ramsey was seeking instructions concerning any enterprise agreement. 179 On Monday, 19 August 2002, the AIRC made an order which had the effect of terminating 121 AWAs with effect from 23 September 2002 including AWAs signed by Mr Stephen Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, Michael McKenzie, Paul McKenzie, Moss, John Young and Susan Young. 180 On 19 August 2002, Mr Delaforce participated in a meeting of employees to discuss conditions and establish a third consultative committee. On 22 August 2002, a resolution was passed electing a third consultative committee and on 23 August 2002, notice was given to management by letter. The members of the third consultative committee were John Young, Moss, Paul McKenzie, Forrest, Weier, Peter Laverty, Brooks, Wayne Dicks, Delaforce, David Goodrick, Robert Carrigan and Sue Young. 182 On 29 August 2002, Mr Davis attended a meeting at the abattoir in the canteen with all Union employee members. Accordingly, no slaughterman and no follow-on labourers or slaughterman shall be required. Boners and their follow-on labours shall be required on Monday 2 nd September 2002 but not Tuesday 3 rd September 2002. All employees please check with your foreman to establish whether you are required. The lack of cattle suitable for our customers, caused by seasonal factors including the current drought and subsequent drop in sale cattle numbers, has caused this closure. The AMIEU has been appropriately advised. You individually shall be advised when you shall be offered further employment. 184 On 30 August 2002, Mr Davis and Mr Delaforce discussed the approach to accessing entitlements with Ms Mortimer and some controversy about that issue occurred. A disputes committee was convened on 30 August 2002 with management including Mr Delaforce, Mr Moss, Ms Mortimer and Mr Allen. On the question of when work might resume, Ms Mortimer said that, "If and when there is available work, people will be contacted individually". There appears to be some confusion among the employers as to the effect of this under the relevant industrial instruments. Accordingly, we have had to officially terminate your services with one week's notice. There are, however, provisions that enable employees to take the opportunity of casual work as work becomes available and to retain full continuity of employment in the event that the shortage of livestock is overcome and work resumes. Could you please let us know at your earliest convenience whether you wish us to hold your entitlements pending possible re-employment or whether you would like your entitlements forwarded to you. The union is apparently concerned that employees might think in taking their entitlements they would be resigning from employment. 188 On 16 September 2002, Mr Delaforce, Mr Moss and Mr Davis sought a meeting with Mr Ramsey to discuss re-engagement of Union members of the workforce. Ms Mortimer said Mr Ramsey would not see the delegation and any requests must be put in writing. Mr Davis attended a meeting of workers and then returned to the office and had a conversation with Ms Mortimer. Mr Davis said all employees are prepared to work and will work if given work. Ms Mortimer said the abattoir was offering work that day to only those individuals contacted by the abattoir. Mr Davis said those individuals would only work if all former employees were offered employment. Ms Mortimer confirmed that employment was restricted due to a stock shortage and when work became available individuals would be contacted. Mr Davis asserted that no one would be working in those circumstances. Approximately five or 10 individuals went back to work that day. 189 On 17 September 2002, Mr Davis and Mr Brown conducted a meeting of workers outside the abattoir premises. As employees approached the security guards, the names of particular employees seemed to be checked off against a list. Some employees were able to enter, others not. Mr Delaforce approached the gate and asked whether he was on a list of workers allowed to work that day, 17 September 2002, and he was told he was not on the list. Later that day, Mr Delaforce received a telephone call from Ms Mortimer advising him that there was work for him at the abattoir on 18 September 2002. On 17 September 2002, Mr Davis wrote to Mr Ramsey on behalf of the employees who had signed AWAs. Mr Davis drew attention to those provisions of the agreement dealing with termination arising out of seasonal factors or shortages of livestock and noted clause 46.4 of the agreement to the effect that if the Union could not be satisfied that the terminations arose out of genuine seasonal factors or shortages of livestock and no agreement could be reached with the employer about those matters, that matter would be referred to the AIRC for determination. 190 On the evening of Tuesday, 17 September 2002, Mr Delaforce and Mr Moss conceived a compromise proposal to resolve the re-employment of all employees. A written proposal was given to Mr Broadrick or Ms Mortimer which involved the introduction of an absenteeism policy, new disciplinary procedures and other entitlements, a round-robin for workers during the shortage of stock, workers with injuries to be handled according to workers' compensation laws and all workers to start back on the following Monday with certain entitlements. Mr Ramsey refused to consider the compromise proposal until all workers rostered for that day, 17 September, returned to work. 191 On 19 September 2002, the question of the dispute concerning the terminations was referred to the AIRC and heard by Commissioner Simmonds. The AIRC refused to make the orders sought by the AMIEU. 192 A number of conclusions emerge from this chronology of events both in relation to the role of the AMIEU in the industrial relationship between the abattoir employers and their employees and the extent to which particular employees either on their own behalf or as consultative representatives of employees more broadly, were expressing dissatisfaction with aspects of the employment conditions. 193 The content of the engagement by the AMIEU is discussed at [102] - [105], [113], [116], [117], [121], [122], [134], [135], [138], [145], [146] - [148], [151] --- [153], [158] --- [168], [171], [172], [175] --- [179], [182], [184], [187] --- [189]. 194 It is clear the AMIEU assumed a significant role in what was perceived by Mr Ramsey to be a matter central to the functioning of the abattoir, namely the terms and conditions of engagement of abattoir employees and the extent to which the employer entities might secure enduring approval or certification for particular arrangements and conditions. 195 Two aspects of this engagement are important. 196 The first aspect goes to the question of whether the extent and content of the engagement by the AMIEU in the process of representing members in connection with either a sustained critique of Mr Ramsey's proposals or formal steps to oppose certification or approval of preferred arrangements (and ultimately an application on behalf of members to the AIRC to bring the AWAs to an end) provides a basis for drawing an inference that has two components. The first component is that Mr Ramsey was hostile to the role of the AMIEU on such an important matter and secondly that membership of the AMIEU by P F McKenzie, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young and membership and discharge of the role as delegate of the AMIEU in the workplace on the part of Delaforce and Moss formed a part of that hostility. 197 The second aspect of the engagement by the AMIEU in these issues is whether the sequence of steps taken by the AMIEU in all the circumstances, satisfies the statutory description of "an industrial association that is seeking better industrial conditions" for the purposes of s 298L(l). 198 As to the second aspect, it seems to me the evidence establishes that the AMIEU was seeking what it perceived to be better industrial conditions for its members at the South Grafton Abattoir. It opposed, with leave, the certification application of the Enterprise Agreement on 18 January 2002. It pressed an opportunity to meet with Mr Ramsey on 19 February 2002 to discuss that matter further and the role of Ramsey Food Packaging No. 2 Pty Ltd . Mr Ramsey knew the AMIEU was addressing meetings of the employees and had previously proposed to conduct meetings on 5 consecutive days in October 2001 concerning the proposed Certified Agreement. The AMIEU, on behalf of many employee members, made an application on 30 July 2002 for the termination of the AWAs ultimately securing the termination of 127 Agreements. The grounds of criticism of the AWAs made by the AMIEU in its application to the AIRC to bring the AWAs to an end are a reflection of perceived "adverse conditions" that would be made "better" by ending the AWAs in favour of the prevailing Award (see [193] and [202] herein). 199 In addition, Mr Delaforce both on his own behalf and in his capacity as a Union delegate was expressing serious and continuing reservations about his conditions of employment. In particular, he was dissatisfied with the provisions of the AWA which brought about the result that wages had not increased since the commencement of the AWAs in 1998. He was dissatisfied with the operation of the tally scheme under the AWAs, manning levels generally (particularly in the boning rooms), issues in relation to rostered days off, waiting time, the bonus scheme, the operation and implementation of the bonus scheme, wage levels generally and the mechanism for addressing grievances. 200 Apart from the concerns expressed by Mr Delaforce, concerns in relation to, in particular, wage levels, and other aspects of employment conditions were concerns reflecting dissatisfaction with conditions of employment by Brooks, Campbell, Forrest, Michael McKenzie, Paul McKenzie, Moss, John Young and Susan Young. 201 In relation to the first aspect, the evidence demonstrates that the role of the AMIEU was significant. Further, Mr Ramsey was in no doubt of the role played by the AMIEU in bringing about and acting as an advocate for a position inconsistent with the conditions Mr Ramsey perceived to be central to the effective and economically efficient operation of the abattoir. The evidence shows that Mr Ramsey was hostile to the AMIEU as an interventionist in the relations between the employer entity and its employees. The expression of that hostility is reflected in those matters described at [123] to [129], [164], [165] and [172]. By reason of the provision of documents to management by the Union concerning representation of Union members at particular proceedings, Mr Ramsey knew or must be taken to have known that P F McKenzie, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young were members of the Union. Mr Ramsey also knew of the articulated dissatisfaction with conditions identified by Delaforce and Moss and the critique of conditions of employment prepared by the Union and the dissatisfaction expressed with conditions by members of the consultative committees. The first committee included Union members P F McKenzie, Moss and Delaforce; the second, M R McKenzie, Brooks, Campbell and J K Young; and the third, J K Young, S J Young, Moss, Forrest, Brooks, Delaforce and P F McKenzie. Having regard to the chronology of these events and the proximity of the timing between the successful applications for termination of the AWAs and the subsequent publication of the dismissal notices, an inference is open that dissatisfaction with working conditions in the context of the agitation by the AMIEU for better industrial conditions of employment was a reason for the dismissal of Delaforce, P F McKenzie, Moss, Brooks, Campbell, Forrest, M R McKenzie, J K Young and S J Young. The evidence of Mr Forrest at [306] shows that after the dismissals and upon re-engagement of employees (approximately 80 to 90 employees), Mr Ramsey expressed his view of the new environment in this way: 'This is how the place will be run now, no RDOs, one sick day and you will be gone, you will be paid the Federal award until such time as a new agreement is worked out. There will be no tally system and you will be paid in accordance with the weight per kilo of the box'. The issue of 'tally' calculations and its relationship with the weight of the beast was an issue for the employers from the outset of operations under Mr Ramsey. Further, having regard to the role of the AMIEU and the hostility on the part of Mr Ramsey towards the AMIEU, an inference is open that a workplace free of those Union members who had become closely associated with the Union position, acted as delegates, distributed material at the workplace and participated in consultative committees urging a different view of conditions of employment was a reason for dismissal of those individuals who were members of the Union. Mr Ramsey's notion that the abattoir would have to close and 'the company could not continue' if the AWAs were brought to an end and the award prevailed [164] or that the abattoir 'would not be viable' under such conditions [165] seems not to be so because within days of the abattoir issuing the termination notices of 10 and 13 September 2002 closing the abattoir, the abattoir was operating again by at least 17 September 2002 and, by 20 September 2002, at least 80 to 90 employees were re-engaged. An inference is open that closure of the abattoir was effected to displace the workforce, re-hire and leave aside at least the current claimants on the ground that these individuals were expressing dissatisfaction with conditions of employment and did so as members of the Union in circumstances where the Union was seeking better industrial conditions. Those inferences arise subject to a consideration of whether the termination of the cohort of employees was due to a stock shortage and whether a dismissal of the entire workforce is a primary fact which prevents any such inference arising. Before dealing with that question, the circumstances concerning Blackadder, Hambly and Swain need to be identified. Mr Blackadder says that the scope of boning work he undertook in all his period of employment at the abattoir did not involve a particular task described as "hot neck boning". 206 Mr Blackadder was either an applicant for relief in proceedings pursuant to the Act or a witness in proceedings under the Act between September 1999 and the commencement of these proceedings. 207 In August 1999, Mr Blackadder was asked to meet with Mr Ramsey's solicitor, Mr Hannigan and provide a statement concerning a workplace incident involving Mr Swain. Mr Blackadder did not want to give a statement which might have led to the dismissal of Mr Swain. He refused. He was summonsed to appear as a witness in AIRC proceedings between Ramsey Packaging and Mr Swain on 27 September 1999. He gave a one page statement (six sentences) concluding that he was not prepared to say whether Mr Swain was performing his duties properly in the boning room on the relevant day. 208 At work at 6.30am the following morning, 28 September 1999, Mr Blackadder was directed to go from the boning room to the slaughter floor and carry out hot neck boning. Hot neck boning involves freeing meat from the bones of a beast from the neck to the ribs. The task involves the use of greater rotational force applied to the wrist and elbow than ordinary boning. Tasks in the boning room are undertaken in conditions under 10 degrees Celsius whereas hot neck boning on the slaughter floor is undertaken in conditions of 20 to 30 degrees Celsius. The task involves processing approximately 70 beasts in an hour and the production line involves presenting the beasts to the boner at a 40 to 45 degree angle requiring the operator to rotate around the backbones of the beast and cut the neck bones out. 209 Mr Blackadder suffered from a pre-existing injury to his right elbow that restricted movement in his arm. The injury was never a difficulty in performing ordinary boning because those tasks involved straight cutting and no rotation of the arm. Mr Blackadder had undertaken medical examinations to determine his fitness for ordinary boning tasks. 210 Mr Blackadder enquired of management as to the reason for the re-allocation of tasks that morning and was told that Mr Roger Campbell needed to be replaced because he was going on holiday leave. Mr Blackadder thought that response odd as Mr Campbell was working with Mr Blackadder to learn the tasks of preparing "cube roles" and "rib fingers" and, in consequence, some other person must be undertaking hot neck boning tasks previously undertaken by Mr Campbell. 211 Mr Blackadder protested that he had no experience in undertaking hot neck boning and that he might well be a danger to other employees on the slaughter floor. He refused to undertake the task. I left work over this blatant attack on me less than 24 hours after I gave evidence in the Australian Industrial Relations Commission. I want you to know that I am ready, willing and able to perform the duties I was hired for. I wish to start back at work immediately in that job and I ask you to allow me to do this. You were employed as a boner and as you know we have previously moved workers to neck bone when we were short, as we were today with our regular neck boner on holidays, you were asked to do that task and refused. You were employed as a boner and the employer has the right to select where you will bone at any given time. You are requested to return to work as soon as possible and to do the tasks assigned to you for the day. In the event that you do not return by Tuesday, 5 October and commence boning where you are so directed, I shall have no alternative other than to dismiss you for your blatant refusal to follow my simple request. Mr Ramsey told him that if he wished to return to the abattoir, he would have to do the hot neck boning. Mr Blackadder said, "I can't do the hot neck boning". Mr Ramsey said, "I am not going to change my mind". Mr Blackadder left the meeting and was subsequently provided with an employment separation certificate. 215 On 25 October 1999, Mr Blackadder, assisted by the AMIEU, made an application for orders against Ramsey Butchering in the AIRC arising out of what was said to be the unfair dismissal of Mr Blackadder. On 29 March 2000, Commissioner Redmond published his decision. Mr Walters gave evidence as to the events that occurred on 28 September 1999 when the applicant was directed to go and preform hot neck boning. In his sworn statement Mr Marshall referred to other matters he thought relevant to the case. During cross-examination by Mr Davis (at pg. 90 line 10 of transcript through to pg. 93 line 35) it became clear that the applicant had been employed by the respondent with a pre-existing elbow injury which was noted in the Doctor's Certificate [Exhibit D2], and which would have caused some restriction when performing hot neck boning. Furthermore the witness expressed his concern regarding training and whether people were being fully trained. Mr Ramsey had pressing cattle buying commitments and the Commission was told he would not be coming. This delayed the matter. Mr Gillies is a boner with many ears experience. He gave evidence in respect of the training procedures that had occurred under the previous owner and what training had occurred to date under the ownership of Mr Ramsey. Mr Delaforce gave evidence regarding a conversation he had with Mr Walters on 19 January 2000, (the day after Mr Walters gave evidence before me). I have had enough. When I went home yesterday after Court, I cracked up. I started crying and fell to pieces. I am sick of lying for the fucking fat cunt. Under cross-examination by Mr Davis Mr Ramsey was aggressive, evasive and forgetful. His aggression was as startling as it was inappropriate. I have formed the view that whenever the truth and Mr Ramsey's business interests conflict, truth would not be the winner. The direction to Mr Blackadder was characterised by the respondent as a move required for the continued operation of the respondent's business in order to cover a vacancy. There was no evidence to support this proposition and I reject it. 217 Shortly after Commissioner Redmond's decision, Mr Blackadder attempted to speak to Mr Ramsey to make arrangements for a return to work. Mr Blackadder was told that he was to stay at home on full pay until further notice. Mr Blackadder then left the plant and went home. 218 On 3 May 2000, Mr Ramsey wrote to Mr Blackadder noting the order for reinstatement within 21 days of 29 March 2000, confirmed that an appeal would be lodged and that on the previous day an application had been made for a stay of the orders of Commissioner Redmond. Mr Ramsey confirmed Mr Blackadder's reinstatement as a boner on and from 20 April 2000 (with an employment date of 30 April 2000 for full continuity of benefits), a direction that Mr Blackadder would "not be required to report for work or otherwise perform work in order to be entitled to wages and other remuneration", a direction to undergo a medical assessment and calculation of entitlements on the basis of a weekly wage as a boner plus the average of the tally paid to all other boners in any given week. Mr Blackadder was notified that this position would continue until the results of the medical assessment became known and evaluated by the company. 219 On 26 June 2000, the AIRC (Justice Boulton, Justice Munro and Commissioner Harrison) published a decision in relation to an application by Ramsey Butchering for leave to appeal from the decision and orders made by Commissioner Redmond on 29 March 2000. The direction to the Respondent to go to the slaughterfloor and perform hot neck boning was given in circumstances where the Respondent had not been given training in relation to the work in question and had never previously performed or been asked to perform such work. The direction was maintained and repeated in circumstances where the Company was aware that the Respondent considered he was being victimised for his participation in legal proceedings by being assigned uncongenial duties; where the Respondent had provided medical evidence to the Company regarding his fitness to do the work in question; and where there was no demonstrated necessity relating to operational requirements of the plant for the Respondent rather than any other boner to be transferred on the particular day or days to relieve or undertake training in hot neck boning work. Indeed given the expressed concerns of the Respondent about victimisation following his participation in Commission proceedings the previous day, it would not be unreasonable to expect an employer to postpone any transfer to new duties, even if such transfer was shown to be part of a general training program for employees. It was not disputed in the appeal that the Commissioner applied the appropriate test in determining that the conduct of the Company resulted in the termination of employment. In our view, the finding that the termination was at the initiative of the employer was reasonably open to the Commissioner and was appropriate having regard to the evidence before him. We also consider that the making of an order for reinstatement and payment of lost wages was appropriate in the circumstances. It has not been shown that the appeal gives rise to any matters of general principle or issue of public importance. In many respects, the appeal bench is simply being asked to make a reassessment of the evidence before the Commissioner and to draw different conclusions from that evidence. We have considered the submissions presented and the evidence and material which was before the Commissioner. It has not been shown that there has been any substantial error in the exercise of discretionary power by the Commissioner in dealing with the Respondent's application for relief. Furthermore, we are satisfied that the conclusions reached by the Commissioner in relation to the termination of the Respondent's employment were reasonably open upon the evidence before him. 222 Mr Blackadder initially took the view that the order for reinstatement was not conditioned by a requirement to attend a medical examination concerning any matter of physical capacity to undertake boning duties in the boning room. He refused to attend an examination. Entitlements for the week ending 11 June to the week ending 23 July 2000 were not paid. 223 After advice from the AMIEU, Mr Blackadder agreed on 26 July 2000 to undertake a medical examination. Entitlements recommenced. On 10 August 2000, Mr Blackadder was advised an appointment would be made with Dr Castagna. No appointment was notified to Mr Blackadder until 30 January 2001, for an examination in early February 2001. 224 Until the examination could occur, Mr Blackadder was advised all accrued leave entitlements would be used and then payments would resume again. An issue arose concerning the appointment in early February but on 5 April 2001 Mr Blackadder was examined by Dr Castagna. The payment of wages and entitlements although interrupted briefly continued as reflected in the group certificates for the years ending 30 June 2001 and 30 June 2002. 225 Mr Blackadder commenced with the assistance of the AMIEU proceedings in the Federal Court against the Third Respondent seeking orders to enforce the reinstatement order of the AIRC, the imposition of a penalty upon the Third Respondent for breach of that order and certain other orders. 226 In those proceedings, the Third Respondent made no evidential challenges to the findings of the AIRC on the termination of Mr Blackadder. 227 On 10 May 2002, Madgwick J made a declaration that the Third Respondent had breached the order of Commissioner Redmond dated 29 March 2000 by failing to reappoint Mr Blackadder to the position he held immediately before the termination of his services on 5 October 1999. Madgwick J imposed particular penalties upon the Third Respondent and made other orders for the payment of certain monies. Madgwick J concluded that a reinstatement order in exercise of the power conferred by the Act impliedly involved a return of the employee to the workplace. In the light of this finding, Madgwick J felt it unnecessary to decide whether the AWA contained an implied contractual obligation requiring the Third Respondent to provide the applicant with actual work. See Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603. 228 The Full Court, allowed an appeal in part by the Third Respondent although Tamberlin and Goldberg JJ took a different view of the reinstatement power under the Act to that of Moore J. 229 The question of the order to be made by Madgwick J by way of injunctive relief was unable to be resolved between the parties and accordingly, Madgwick J on 21 May 2002 made further orders and published a supplementary judgment. The order of 21 May 2002 directed the Third Respondent to reinstate the applicant to the position in which he was employed prior to the termination of his employment, namely, a boner performing chilled boning work in that part of the respondent's premises known as the big boning room. 230 The question to be determined on appeal was whether the power conferred upon the AIRC by s 170CH(3)(a) of the Act requiring an employer to reinstate an employee where it has made a finding that the employer terminated the employee's contract in circumstances which were harsh, unjust or unreasonable, extended to requiring the employer to "provide work" for the employee upon reinstatement. Tamberlin and Goldberg JJ concluded that there was no provision in the AWA which required the Third Respondent to provide Mr Blackadder with work other than a requirement that adequate and sufficient labour be provided by the Third Respondent to follow boners "in order to avoid congestion". 231 Their Honours concluded, as a matter of construction, that the legislative intention was to re-establish rights or equivalent rights destroyed by the wrongful termination with no conferral of power to provide the employee with more than that to which he was entitled prior to the wrongful termination. In other words, the Act required that the person should be restored to all the contractual entitlements which applied in respect of the position occupied by the employee at the time of the wrongful dismissal but no additional entitlements arise which were not previously vested under the terms of the employee's contract of employment. 232 The order of Madgwick J was varied to delete any prescriptive reinstatement to the position of 'a boner performing chilled boning work in that part of the respondent's premises known as the big boning room' . Moore J respectfully disagreed with the analysis of Tamberlin and Goldberg JJ and concluded that the reinstatement order of Commissioner Bacon properly required the Third Respondent to reappoint Mr Blackadder to the position of a boner undertaking boning in the big boning room. 233 Ultimately, on 27 April 2005, the High Court set aside the orders of the Full Court of the Federal Court and allowed in part an appeal by Mr Blackadder. The High Court concluded that the scope of the power conferred by s 170CH(3) of the Act was broader than simply a reinstatement of the contract of employment and extended to a restoration of the employment situation as it existed immediately before the termination. 'So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination' : Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 per McHugh J at [14]. The AMIEU has been appropriately advised. If you wish to make this request please send your written application to our office. I did not receive any notice on the 21 st August 2002 and ask that you confirm when it is anticipated that there will be sufficient stock to resume work. I remain ready, willing and able to resume at that time and in the interim period request payment of my rostered days off. That letter sought to clarify some confusion about the effect of the decision taken by the employer. The letter says that Mr Blackadder's employment has been 'officially terminated' and that entitlements might be claimed 'pending re-employment'. The letter also speaks of 'possible re-employment'. I remain available to resume full employment at the end of the current shortage of stock period and in the interim, I require payment of my roster days as previously requested during this period. Thus, Mr Blackadder's employment was terminated as a matter of construction of the instruments of termination. 239 Mr Blackadder, however, continued to receive periodic payments until 8 December 2002. The continued receipt of payments is inconsistent with actual termination of employment or at least an immediate implementation of a termination decision. Continued payments until 8 December 2002 may have been made either mistakenly or for any unexplained reason. It may be that the letters of termination were mistakenly sent to Mr Blackadder but the evidence demonstrates that he received both the letter of 10 September 2002 and the clarifying letter reasserting the termination of his contract, and dated 13 September 2002. The letters of termination are clear. Employment ceased on one view on 8 December 2002. Reinstatement in performance of the AIRC order had not occurred as a matter of law as the High Court subsequently explained. It seems to me that the proper construction is that the employment of Mr Blackadder was terminated by the letters but he seems to have suffered no financial loss by reason of the termination until 8 December 2002. 240 Counsel for the respondents, Mr Hatcher, says that the pre-history in relation to the issues concerning Mr Blackadder are much misunderstood. Mr Hatcher says this. At no point did Mr Ramsey tell Mr Blackadder that he was "sacked". Certainly, Mr Blackadder was asked to undertake hot neck boning tasks and this request was consistent with an expectation on the part of the employer that rotation of tasks would occur. This notion of rotation was something sought by the employees and regarded by the employer as both uncontroversial and important. The sequence of events in relation to Mr Blackadder are simply designed to establish by innuendo conduct concerning Mr Ramsey which would reflect unfavourably upon him or cause adverse inferences to be drawn. Although ultimately a constructive dismissal occurred, it was Mr Blackadder who elected to withdraw from the workplace having been asked to undertake rotational hot neck boning tasks. 241 The difficulty with this explanation is that the immediate point of contention is not so much the dismissal (constructively) but the conjunction of the finding that Mr Blackadder was constructively dismissed, his obtaining a reinstatement order by the AIRC, the subsequent treatment of Mr Blackadder in the context of that order and the consequences for Mr Blackadder of having obtained that order and taken steps to enforce it in the Federal Court of Australia. On 28 April 1998, Mr Hambly commenced working as a slicer under an AWA with Ramsey Butchering. Mr Hambly worked in the big boning room and in May 1998 became chairman of the Occupational Health and Safety Committee. Mr Hambly contends that disputes arose with Mr Ramsey about the importance and relevance of occupational health and safety issues as a result of which Mr Hambly felt that there was no commitment by Mr Ramsey to a culture of compliance with good practice in the workplace. On 30 June 1999, an OH&S issue arose which brought Mr Hambly into controversy with the supervisor of the big boning room, Mr Robert Walters. On the next day, 1 July 1999, Mr Hambly was instructed to "go hot neck boning". Mr Hambly protested that he had not been trained for the work, was a slicer by trade and the tasks associated with hot neck boning would place significant pressure on a pre-existing injury to Mr Hambly's right shoulder. Although the injury did not prevent him from undertaking his normal tasks, the physical manipulation of the carcass would prove difficult. Mr Hambly says that his pre-existing injury had been disclosed and was the subject of medical certificates. 243 On that day, 1 July 1999, Mr Hambly had a meeting with Mr Ramsey, Ms Mortimer, Mr Walters and other representatives of management. Mr Hambly asked Mr Ramsey why he had been directed to hot neck boning tasks. He was told that it was an aspect of multi-skilling practice. Mr Hambly said he could not do the work and Mr Ramsey responded 'so you're resigning, and that will be that'. Mr Hambly said that he would contact Mr Davis of the AMIEU and Mr Ramsey made a pejorative unpleasant remark about Mr Davis. On leaving the meeting, Mr Hambly said to Mr Walters that the direction had 'something to do with Jason Robertson' and Mr Walters replied 'I believe so'. Mr Hambly then had a telephone conversation with Mr Ramsey. Mr Hambly was told that he had to do what he was told with respect to hot neck boning. Mr Hambly said he believed the direction to do this work 'has something to do with Jason Robertson' and Mr Ramsey responded 'if you have a guilty conscience you have to live with it'. 244 On 2 July 1999, Mr Hambly obtained a certificate from Dr Palmer and delivered it to Mr Ramsey. Mr Ramsey told him that there was no job for him at the abattoir and contended that Mr Hambly had resigned at the meeting on 1 July 1999. 245 Later that month, Mr Hambly commenced proceedings before the AIRC asserting a constructive unfair dismissal. 246 On 14 February 2000, Mr Hambly obtained an order of the AIRC requiring Ramsey Butchering to reinstate him to the position in which he was employed immediately before his termination of employment on 1 July 1999 and an order for compensation for lost wages. 247 Mr Ramsey sought to appeal that decision. The appeal was dismissed by a Full Bench of the AIRC on 23 June 2000. 248 Prior to that decision, the solicitors for Ramsey Butchering wrote to Mr Hambly asserting that the situation was such that Ramsey Butchering could never have a working relationship with Mr Hambly if reinstatement was to occur and, as a result, Ramsey Butchering desired to sever its relationship with Mr Hambly once and for all and assist him to find alternative employment. Ramsey Butchering on 4 May 2000 took the position that Mr Hambly's pre-existing condition had not been disclosed and the failure to do so precluded a reinstatement order. Mr Hambly was requested to attend an appointment with Dr Castagna. On 23 June 2000, Ramsey Butchering wrote to Mr Hambly referring to the Full Bench dismissal of the appeal from the reinstatement order of Commissioner Wilks and directed Mr Hambly to present himself for a medical examination as he had been absent from the abattoir since 1 July 1999 and had not worked as a slicer for approximately 12 months. Like Mr Blackadder, Mr Hambly was told that although he was on the payroll from 26 June 2000, he was not required to report for work until further notice. 249 Some time after that letter, Mr Hambly received payment of 32 weeks pay. 250 Mr Hambly then attended a medical examination with Dr Castagna. 251 Between July 1999 and September 2002, Mr Hambly received a weekly wage subject to interruptions during periods when he was paid accrued entitlements in lieu of wages. 252 On 3 September 2002, Mr Hambly received a letter from Mr Ramsey in the same terms as the letter sent to Mr Blackadder set out at [234]. On 6 September 2002, Mr Hambly responded in the same terms as Mr Blackadder's response recited at [235]. 253 On 10 and 13 September 2002, Mr Hambly received letters from Mr Ramsey in the same terms as the letters recited at [185] and [186]. On 12 September 2002, in response to the letter of 10 September, Mr Hambly responded disputing the efficacy of the termination and asserting that he still remained employed under the AWA. Mr Hambly asserted that he remained available to resume full employment at the end of any current shortage of stock and in the interim, required payment of 'roster days' as previously requested. 254 Mr Hambly says that he has never been offered work by the abattoir since the date of his dismissal on 1 July 1999 and on 16 October 2002 Mr Hambly received an employment separation certificate from the abattoir. On 1 May 1998, Mr Swain recommenced employment as a boner employed by Ramsey Packaging. 256 On 15 April 1999, Mr Swain was directed by Mr Walters, the foreman of the big boning room, to attend the administration office and have a conversation with his employer's solicitor. A conversation took place concerning Mr Jason Robertson and the contention that Mr Robertson was throwing good meat down a waste disposal chute. Mr Swain said he had not seen such conduct. Mr Swain was asked whether he would be prepared to sign a document about the matter. The next morning, 16 April 1999, Mr Swain was handed a letter signed by Mr Ramsey advising that Mr Swain's employment with the company had been terminated as of that day. 257 On 30 October 1998, Mr Swain had been handed a letter constituting a first official warning of poor work performance. The warning followed a counselling interview held on 30 October in relation to Mr Swain's failure to return to his work station on time. That letter contended such matters were serious and repetition would result in disciplinary action including the possibility of termination of Mr Swain's employment. Mr Swain's conduct was to be reviewed on 13 November 1998. Mr Swain disputed the allegations put to him. 258 On 18 February 1999, Mr Swain was given another letter of official warning for poor performance following a counselling interview held on 10 February 1999 in relation to an alleged failure to follow work instructions issues by Mr Swain's supervisor. Again, Ramsey Packaging asserted that the matter was serious and repetition would result in disciplinary action including the possibility of termination of Mr Swain's employment. Mr Swain's conduct was to be reviewed again on 24 February 1999. Mr Swain says that the reviews mentioned in both those letters did not take place. Shortly after the receipt of the termination letter on 16 April 1999 Mr Swain commenced proceedings before the AIRC with the assistance of Mr Davis of the AMIEU. On 24 December 1999, Commissioner Jones held that Mr Swain had been unfairly dismissed. No order for reinstatement was made. However, an order for compensation was made. Mr Swain appealed against that part of the decision which did not order reinstatement and on 6 June 2000 a reinstatement order was made together with an order for the payment of certain monies by way of salary and entitlements owing since 15 April 1999. Ramsey Packaging sought leave to appeal to the Full Bench of the AIRC and that application was dismissed on 23 August 2000. 259 On 9 June 2000, Mr Swain received a letter from Ramsey Packaging on behalf of Mr Ramsey advising that although the order required reinstatement of employment as from 12 June 2000, Mr Swain would be placed on the payroll of the company from that date but Mr Swain was not required to report to work until further notice. Mr Swain was to be paid at the rate of a boner with tally for the working of ordinary hours in any given week. Continuity of employment was to be restored from 12 June 2000 in compliance with the order pending the appeal. Since Mr Swain, by 9 June 2000, had been absent from the workplace since 16 April 1999, the company required Mr Swain to attend a medical appointment as to his fitness for work. Mr Swain attended an examination with Dr Castagna. No disability for work was contended. However, Mr Swain did not receive a request to attend work at any time after 12 June 2000. On 12 July 2000, Mr Swain was advised that accumulated entitlements would be paid until discharged, in lieu of wages and once utilised, Mr Swain would then be paid normal weekly wage entitlements until June 2001. Mr Swain says that after that date, he was paid holiday entitlements in lieu of wages and then continued to receive normal weekly wages until the end of August 2002. On 6 March 2002, Ramsey Packaging told Mr Swain that annual leave entitlements would be exhausted in lieu of wages. 260 On 2 September 2002, Mr Swain received a letter signed by Mr Ramsey in the same terms as the letter recited at [234]. On 10 September 2002, Mr Swain received a letter signed by Mr Ramsey in the same terms as the letter recited at [185]. 261 On 12 September 2002, Mr Swain contested the termination, asserted a continuing employment relationship under the AWA and asserted that he remained available to resume full employment at the end of the stock shortage period. 262 Following these letters, Mr Swain did not receive any offers of re-employment from the abattoir and on 16 October 2002, Mr Swain was provided with an Employment Separation Certificate from Ramsey Butchering. 263 The history of each of these three employment relationships reveals some similarities. Mr Blackadder was asked to give evidence by Mr Ramsey's solicitor concerning a workplace incident involving Mr Swain. He gave evidence upon summons on 27 September 1999 and provided a short statement unhelpful to Ramsey Packaging. The next morning he was constructively dismissed by redeployment to 'hot neck boning'. Mr Hambly, on 30 June 1999, became engaged in a controversy over an OH&S issue concerning the operation of the boning room. The next day Mr Hambly was constructively dismissed by redeployment to 'hot neck boning'. Neither Mr Blackadder nor Mr Hambly were trained to undertake hot neck boning, each had a pre-existing injury which each of them assert was the subject of medical certification demonstrating a physical capacity to undertake boning work and each took proceedings ultimately resulting in a reinstatement order of the AIRC. Mr Swain on 15 April 1999 was asked by Mr Ramsey's solicitor about his knowledge of conduct by Jason Robertson and whether Mr Swain would sign a document about that conduct. The next morning, Mr Swain was handed a letter of termination of employment. Mr Swain sought and obtained a reinstatement order of the AIRC on 6 June 2000 arising out of a finding of unfair dismissal. 264 Notwithstanding the orders for reinstatement, each man was placed on the payroll of the abattoir but no work was available. No step was taken to achieve a restoration of the employment position as it existed prior to termination or to achieve a situation where so far as practicable, the employee was given back his 'job' at the same place and with the same duties, remuneration and working conditions as existed before the termination. Moreover, in each case, the employer directed the employee to attend a medical examination to determine whether the employee was fit to perform work given the long period of un-deployed skills since termination. The failure to utilise those skills was a function of the election by the employer not to provide physical work to the employee. In each case, for all practical purposes, the employee was first removed unlawfully from employment and then from the date of the reinstatement order held in suspension from work. That suspension continued until Mr Blackadder received the letter of 3 September 2002 and, more particularly, the letter dated 10 September 2002 by which he was told that his services had been officially terminated, that he could elect to receive a payout of all entitlements at the termination date or keep open the option of re-employment. If the latter election was to be made, Mr Blackadder was invited to advise the employer as soon as possible as to whether entitlements should be held 'pending possible re-employment'. In the case of Mr Hambly, he received the letters of 10 September 2002 and 13 September 2002. The 13 September letter reinforced the earlier letter and emphasised that any confusion as to whether termination had been effected could be put at rest because, so far as the employer was concerned, 'employment had already been terminated'. Mr Swain's employment was also terminated by the letter of 10 September 2002. 265 The long elapsed period between the dates of the reinstatement orders of the AIRC and the termination conduct in August and September 2002 would, in the ordinary course, suggest that no inference could be drawn that securing the benefit of the reinstatement order was a reason for the conduct of termination. 266 However, the history of these events and the subsequent processes, the immediacy of the response to apparently unhelpful positions adopted by each man, the serious demonstrated character of the order in each case as a remedial reinstatement order addressing harsh, unjust and unlawful termination, the election to treat the reinstatement as a payroll reinstatement without providing each man with an opportunity to deploy his skills in the workplace, reliance upon apparent consequential wasting of physical skills as a basis for testing capacity to re-engage in the workplace taken together suggest the reinstatement order was a continuing matter of relevance and inferentially a reason for termination. These controversies were matters of real substance and represented an enduring burden as each man remained on the payroll but was deliberately un-deployed. 267 The evidence provides a basis for inferring that as to Blackadder, Hambly and Swain, the termination of employment was carried out for a reason including that these men had become entitled to the benefit of an industrial order of the AIRC and to that end, had participated in a proceeding under an industrial law and had given evidence in a proceeding under an industrial law as contemplated by s 298L(1)(h)(j) and (k). 268 The constraint upon relying upon the inference that these matters continued to influence the mind of Mr Ramsey as a reason for termination and that the matters described at [203] were inferentially a reason for the termination of the contracts of employment for those individuals, is the question of whether the only reason for termination was a shortage of stock which made livestock processing at the abattoir a practical impossibility thus removing the demand by the operator for the acquisition of labour hire services resulting in an election by the employer entities to terminate the cohort of employees. On Monday 19 August 2002, the AIRC made an order terminating a substantial number of the AWAs with effect from 23 September 2002. On that day, Mr Delaforce conducted a meeting of employees to discuss conditions and establish the third consultative committee. On Wednesday 21 August 2002, abattoir management placed a notice on the abattoir noticeboard advising that the plant was operating under a stock shortage as 'per clause 17 of the AWA until advised otherwise'. On Thursday 22 August 2002, the third consultative committee was elected and on Friday 23 August 2002 notice of the composition of the committee was given to abattoir management. On the following Thursday 29 August 2002, Ms Mortimer placed the notice recited at [182] on the noticeboard and on the same day employees were handed the notice of stock shortage with the additional endorsement that each employee was entitled to request payment of all entitlements. The disputes committee was convened [184] and on 10 September and 13 September 2002 Mr Ramsey sent his letters of termination. 270 Shortly after the dismissal of the entire cohort of employees, the First, Second and Fourth Respondents began re-engaging labour especially during the period September, October and November 2002. On 16 September 2002, Mr Delaforce, Mr Moss and Mr Davis sought to discuss re-engagement of Union members of the workforce with Mr Ramsey. Re-engagement occurred on 17 September 2002 of some individuals. Mr Delaforce says that his name was not on the list [189]. On 17 September 2002, Mr Delaforce and Mr Moss conceived their compromise proposal to resolve re-employment of all employees [190] which was given to Mr Ramsey. On 19 September 2002, Commissioner Simmonds refused orders sought by the AMIEU concerning the terminations. 271 Each of the individuals the subject of these proceedings (apart from Ms Susan Young) contends that they sought and were refused employment in the re-engagement period. 272 The applicant says that the notion of a stock shortage is a construct to obfuscate the conjunction of a termination of the cohort of employees in the time frame discussed followed by an immediate re-engagement of a workforce which left aside members of the Union who had proved troublesome and difficult to Mr Ramsey as reflected in these reasons. In particular, former employees who had contested the working conditions preferred by Mr Ramsey; held dissatisfaction about existing conditions; had participated in consultative committees and had been willing participants in the various procedures in which the AMIEU had a role to play, were left aside. Moreover, the applicant says the transactional offers of employment to some of those individuals, in the circumstances of the offers, is simply a further construct to create evidence of an offer of employment of a very limited kind, generally a single day offered by a letter or communication received in circumstances where the offer was either impossible or difficult to accept. Thus, the offers are said not to be genuine. 273 In order to provide evidence in support of the contention that the stock shortage was simply a construct, the applicant relied upon the evidence of an expert, Mr Broadway. The respondents contested the expertise of Mr Broadway and as a result of a voir dire , I made a ruling that Mr Broadway had established a sufficient foundation for a body of relevant experience so as to give expert opinion evidence on the matters in issue the subject of his report. 274 The evidence of Mr Broadway was particularly called to answer the evidence reflected in the letters of 10 September and 13 September 2002 that a stock shortage was the reason for the terminations. No doubt, the applicant anticipated that the respondents would seek to rebut the contended reasons by relying upon evidence that the stock shortage was the only reason for the terminations. The applicant says, in submissions, that it does not need to rely upon the evidence of Mr Broadway because the presumption arising by operation of s298V has not been rebutted and the onus of proof has therefore been discharged. The applicant, however, says that although aspects of the report of Mr Broadway suffer from some difficulty, the underlying data relied upon by Mr Broadway remains admissible and the integrity of that data is material upon which I might rely in making a finding as to whether there was, at the material time, a shortage of stock available for acquisition in the market by the operator of the abattoir. The applicant says he does not need to prove there was no stock shortage but in any event, the evidence suggests no shortage of stock available to the abattoir at the material time. 275 The difficulty attending the report of Mr Broadway is essentially this. Mr Broadway has not previously provided expert evidence in proceedings before a Court. He was not provided with a copy of the Practice Direction entitled Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued by the Chief Justice on 19 March 2004 and was therefore not astute to some important aspects of the role to be discharged by an independent expert. An expert, of course, enjoys the privilege of being able to express an opinion about a matter in issue and accordingly the expression of that expert opinion must not only be entirely independent and objective but is one given to the Court to aid the trial judge in the determination of the matters in issue. 276 To the extent that a report exhibits features of advocacy on behalf of one of the parties, or is commissioned to make a case for a party, the report is to that extent compromised. In addition, Mr Broadway was provided with certain statistics by the AMIEU described as National Livestock Reporting Service ("NLRS") data and in cross examination by Mr Hatcher there seemed to be some lack of clarity about the extent to which Mr Broadway authenticated the data independently, relied upon the data or allowed the data to be influential in the formulation of his opinion about the questions put to him by the advisers to the applicant in the letter of instructions. 277 It seems to me that in these circumstances, although Mr Broadway gave evidence with total honesty and with a view to expressing opinions he had formed about the matters the subject of his analysis with a view to assisting the Court, it would be inappropriate to rely upon the opinions formed by Mr Broadway. In making that observation, I make no criticism of the individual who I believe genuinely sought to assist the Court. In making these observations, I am conscious of the comments of Allsop J in Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 at [676] , the remarks of Gleeson CJ in HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 at [39] to [43] and the observations of the Australia Competition Tribunal per Goldberg J (President) Mr Latta and Professor Round in Qantas Airways Limited [2004] ACompT 9 at [212] to [227]. The observations of the Australian Competition Tribunal on the use of expert evidence and particularly the role of the expert ought usefully be provided to any expert seeking to give evidence in Court proceedings. However, it seems to me that the underlying data drawn from the Australian Bureau of Statistics ("ABS" or "the Bureau") and material arising out of a 2001 study of the Australian beef industry by the Australian Bureau of Agricultural and Resource Economics ("ABARE") remains admissible and useful. 278 The statistical data does not extinguish the possibility that a stock shortage occurred at the relevant time but to the extent that the respondents seek to rely upon this data as a basis for asserting that a presumption arising by operation of s298V is rebutted, the data falls well short of that result. I will turn to the question of the operation of the presumption shortly. 279 The South Grafton Abattoir is located in a region regarded as one of the major cattle producing regions in New South Wales. The ABS conducts a Livestock Census every five years to determine changes in livestock holding patterns in each State of Australia. It updates the census with annual surveys sampling livestock numbers. The last census was held in March 2001 and the results were published by the ABS in June 2002. 280 In order to make the statistics meaningful, the ABS disaggregates data on the basis of Statistical Divisions ("SD"). There are 10 SDs in New South Wales and each SD is broken down into a Sub-Statistical Division ("SSD") and Statistical Local Areas ("SLAs"). There are 190 SLAs in New South Wales. Using these SDs, SSDs and SLAs, livestock holdings within precise areas within the State can be identified. The South Grafton Abattoir is located in an SD classified as Mid-North Coast for the purposes of the ABS data. Mr Broadway has examined the data for each SD which lies within a 400 kilometre radius of the abattoir on the assumption that such a distance represents a reasonable catchment within which to draw cattle. I accept Mr Broadway's opinion on the geographic scope of that catchment. The ABS statistics show that whilst the Mid-North Coast SD makes up 5% of the State's beef cattle numbers and calf numbers, the combined SDs of Mid-North Coast, Richmond-Tweed and Northern and Hunter SDs represent approximately 46% of the State's total meat cattle numbers and approximately 45% of the State's total calf numbers at the time of the census in March 2001. 281 Since the 2001 census, ABS conducted an agricultural survey in June 2002 reflecting upon the 15 month period since March 2001. The survey shows that cattle numbers in New South Wales decreased by 4%. Since March 2001, New South Wales had undergone two winters of below average rainfall and producers across the State were compelled to assess livestock holdings and carrying capacity. The ABS statistics and data from Meat and Livestock Australia suggest that "cattle turnoff" either for live export or sale for slaughter, increased by 7.5% over the previous year and, in particular, there was a significant increase in cow, calf and heifer slaughter. The ABS collects information each month from the processing sector of the numbers of livestock slaughtered and breaks that data down on the basis of species and sex. Information is also collected by the ABS regarding meat production levels which enables the Bureau to determine movements in average carcass weights across all species. Although this information is available on a State by State basis, it is more difficult to isolate the data by reference to each SD within a State. However, the Bureau has provided data aggregated for the three SDs adjacent to the South Grafton Abattoir broken down by cattle and calf slaughter for a period from 1999 to 2003 and, in particular, for the period 1 January 2002 to 31 December 2003. 282 The statistics show that in the quarter July, August, September cattle and calf slaughter rose significantly as against the previous two quarters. In 2002, the statistics show an increase in cattle slaughter and calf slaughter of 16% and 5% respectively over the previous year. These statistics are consistent with the increase in turnoff of cattle. 283 As to the availability of livestock for slaughter, a 2001 study of the Australian beef industry by ABARE demonstrates that saleyard auction accounts for approximately 70% of total livestock purchase transactions in New South Wales. Although these sales are supplemented by other methods, procurement through saleyards is the dominant method and therefore saleyard sales data might usefully suggest something about the availability of stock for purchase in the August 2002 to the end of January 2003. Data for this period has been disaggregated by selling centre of which there are many. The data shows that approximately 50% of purchases by the abattoir were sourced from four saleyards at Casino (25%), Wagga (10%), Taree (6.1%) and Grafton (5.3%). Mr Broadway says, and I accept his opinion on this question, that Casino is one of the largest cattle markets in the eastern States with a total annual throughput of 143,000 head and it represents the principal market for vealer and weaner beasts. Wagga is the third largest cattle selling centre in New South Wales with average yearly yardings of 114,000 head. Grafton and Taree are regional saleyards with insufficient annual throughput to warrant reporting by the NLRS. 284 These NLRS statistics are data concerning cattle numbers sold weekly at each saleyard provided to Mr Broadway by Mr Davis of the AMIEU. The use and circumstances in which Mr Broadway obtained particular information from the AMIEU is one of the difficulties with Mr Broadway's report. I propose to simply examine the statistical NLRS information to assess whether the data reflects consistency with the ABS statistics showing an increase in cattle turnoff for the period and the significant increase in cattle slaughter and calf slaughter in the 2002 year. 285 In examining these statistics, Mr Broadway concentrated upon the data concerning Wagga and Casino as the statistics suggest that the abattoir sourced more than 35% of its purchases during the period August 2002 to January 2003 from these two centres. Both these centres represent the principal centres for the sale of vealers and weaner types. Mr Broadway contends that the abattoir predominantly focuses upon the processing of vealers, vealer types and weaner calves generally lighter than 250kg live weight. Mr Broadway says the production data for the period 5 July 2002 to 17 January 2003 with the exception of the week 15 to 20 August 2002 demonstrates that up until the abattoir's closure on 29 August 2002, vealers and vealer types represented an average of 84% of the numbers of beasts slaughtered. In the period after re-opening of the abattoir from 13 September 2002 until 7 January 2003 the number of vealers and vealer types represented on average 94% of throughput and around 91% of the abattoir's total meat production. 286 As to the combined yardings for Wagga and Casino in 2002 for vealers and vealer types, overall numbers were lowest during the period May 2002 to the end of July 2002, strengthened by the first week of August 2002, declined in the second week of August, steadied by the end of the month, increased and peaked on 6 September 2002. Numbers did not start to fall away again until the week of 20 September 2002. The statistics for total yardings at Wagga and Casino, not just those confined to the two classes of beasts, demonstrates that yardings for 2002 started to decline after the end of April, trended sharply downwards for two months, trended up throughout July 2002 and August 2002. 287 Yardings concerning vealers and vealer types and statistics concerning total yardings show fluctuation. However, the upward trend through July and August in each case is consistent with increasing turnoff of beasts and ABS data concerning increases in slaughter of cattle and calves during the period. Price data concerning livestock for vealer steers 200-280kg, vealer heifers 200-280kg and yearling steers 330-400kg suggests fluctuations throughout 2002 with prices trending down throughout the early part of August and increasing in the latter part of August into September 2002. The overall trend for the year from 4 January 2002 until 20 December 2002 shows a decline. 288 The result of the data is inconclusive. To the extent that the ABS data reflects a trend, it demonstrates that two winters of below average rainfall between March 2001 and June 2002 resulted in an overall decrease in stock numbers but a 7.5% increase in the turnoff of cows, calves and heifers for slaughter. It demonstrates a significant increase in the cattle and calves for slaughter in 2002. Although reliance upon the NLRS statistics is inappropriate as a primary source of data, the material does suggest broad consistency with the ABS material. 290 I will address the application of the presumption shortly but assuming for the moment that the presumption properly arises, its operation achieves this result. Once the Employment Advocate proves conduct on the part of the relevant respondent and alleges that the conduct was carried out for a particular reason, a presumption arises that the conduct was carried out for that reason. The applicant bears the onus of establishing the elements of the cause of action on the balance of probabilities but the effect of the presumption is to discharge the onus as to the alleged reason unless the relevant respondent rebuts the presumption. The respondents seek to rebut the presumption (assuming it arises) in reliance upon several matters detailed below. In addition, to the extent that the applicant submits that the evidence satisfies its onus without reliance upon the presumption, the respondents contend that no inference can properly be drawn of a prohibited reason for the conduct. 291 The first of those matters arises out of the cross examination of Mr Davis. Mr Hatcher relied upon this sequence of cross examination. Do you recall that? And in the period particularly before the close down of Gilbertson's, there had been an increasing number of stock shortages or seasonal close-downs --- or whatever, occurring at Gilbertson's, hadn't there? I understand they had some closures, as other abattoirs had done. Yes, I couldn't say if it was more or less. 293 Mr Hatcher relied upon this further cross examination. It tended to be other people. I don't include Christmas close-downs? I think so but I can't be sure. I think you're correct. 295 The second body of evidence is the response by the AMIEU when the closure occurred. Mr Hatcher says the Union's response was not that no stock shortage was occurring. On the contrary, there was an acceptance by the Union that there was a stock shortage. Mr Hatcher says that the point of difference between Mr Ramsey and the Union was not that the stock shortage contention was a sham but what appropriate method would be applied to dealing with the consequences of a stock shortage. Although Mr Davis gave evidence that his predominant concern was the consequences of the stock shortage in terms of the entitlements of the men rather than a forensic analysis of whether there was validity in the reason put forward, Mr Hatcher says that the evidence of Mr Davis should be viewed in the following way. Mr Davis was a man who was the subject of considerable antagonism with Mr Ramsey. He was a man looking to advance any genuine cause of grievance that he could, had done so previously but yet waited a considerable period of time (approximately three weeks) after the initial notification before contending that the stock shortage may not have been genuine. 296 Mr Hatcher contends that Mr Davis was in a position to know events in the meat industry and the practice surrounding a stock shortage. The contemporary events and conduct of Mr Davis do not suggest anything other than a stock shortage taking place. Correspondence took place but the burden of the issue was the orthodoxy surrounding the steps Mr Ramsey needed to take in the face of a stock shortage. Should a termination take place? How should entitlements be treated and other such matters? It is not until the letter of 17 September 2002 that Mr Davis takes issue with the notion of a stock shortage and the matter is then referred to the AIRC on 19 September. 297 The further evidence relied upon by Mr Hatcher emerges from the transcript of the proceedings before Commissioner Simmonds and it concerns the evidence of Mr Delaforce which is said to contain an unequivocal concession of a stock shortage. It was a matter that can be dealt with briefly. The only indication to the Commission that the terminations were not on account of a shortage of stock was an assertion to that effect from the bar table and the correspondences of 17 September 2002 addressed to the company. The assertion was challenged by Mr Hatcher and, therefore, I cannot rely upon it. The correspondence takes the matter no further. There is then the evidence of Mr Delaforce. During cross examination he conceded that there was a drought in Northern New South Wales affecting Grafton and that there was presently a shortage of cattle at Grafton saleyards. He worked in the abattoir. He is very familiar with the stock the abattoir requires for production. He speaks with authority, experience and knowledge. Oddly enough, although particular reliance is placed upon Mr Delaforce's standing, he was not offered any full time employment upon resumption of operations or any period of sustained casual employment. In re-examination a question was put to Mr Delaforce in these terms. I couldn't tell you --- when you say exact time I couldn't tell you. 300 It seems to me very difficult to conclude that this evidence establishes a stock shortage at the material time and further that the reason for the termination conduct was a stock shortage. Mr Davis was responding in a period of intense activity to a termination of the workforce made more difficult by a controversy about the appropriate way to deal with the entitlements of each worker. There was sufficient confusion about those matters that Mr Ramsey found it necessary to write a letter on 10 September seeking to clarify the earlier notice to the men and then found it necessary to write another letter on 13 September seeking to further clarify issues arising out of the prior letter and the earlier notice. Plainly enough, there was both concern and confusion about the terminations and the treatment of entitlements. It seems to me that Mr Davis's focus upon ensuring that Mr Ramsey dealt with the entitlements according to an accepted methodology was the true focus of his concern. No inference can be drawn that because Mr Davis did not agitate the question of whether a stock shortage was a genuine reason for the terminations until 17 September 2002 that Mr Davis had turned his mind to the question, examined the facts, formed a compelling view and acquiesced in the reality of the stock shortage. Mr Davis may well have accepted the explanation contained in the notice and in the two letters but, on looking at the matter more carefully, may have formed a different view. The evidence of Mr Davis does not establish, on the balance of probabilities, a stock shortage. As to the evidence of Mr Davis, I accept his evidence. 301 Further, the evidence of Mr Delaforce simply demonstrates that at the moment in time when the notice was placed on the noticeboard (29 August 2002) 'it wasn't a surprise' to him. He thought there may well have been a basis for concluding that a stock shortage had occurred. He might have been right about that or simply incorrect. It was merely a view. 302 Accordingly, it seems to me that the evidence relied upon by Mr Hatcher does not answer the inferences open on the evidence described at [203] and [263] --- [267]. 303 Mr Hatcher cross examined Mr Broadway and put a number of matters to him. They included the proposition that Mr Broadway had not taken account of the impact of changes to the United States quota arrangements nor the precise nature of the processed meat product market into which the abattoir was seeking greater entry nor the precise differentiated character of the beasts the abattoir required for slaughter so as to service that particular market. All of these matters went to the basis for the opinion formed by Mr Broadway. However, I do not rely upon Mr Broadway's opinion except to the extent that I have indicated and, in particular, I do not rely upon his opinion concerning the range of possible responses by an efficiently managed abattoir to market circumstances. I simply rely upon statistical data. 304 The statistical data does not exclude the possibility that the circumstances confronting the abattoir in August 2002 presented a stock shortage. However, the applicant has no obligation to exclude such a possibility. To the extent the statutory presumption applies, it is not rebutted by the respondents by reliance upon the evidence of Mr Davis, Mr Delaforce or Mr Broadway. Moreover, the circumstances appearing in the evidence as I have described give rise to reasonable inferences concerning a reason for termination and subsequent refusal to employ which are not merely conflicting inferences of equal degree of probability. By more probable is meant no more that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise. In drawing these inferences I have had regard to the scope of the allegations, the standard of proof and the characterisation of the conduct for the purposes of the Act. Mr Blackadder said he remained ready, willing and able to resume work. Mr Blackadder was told on each occasion that "there is no work available for you". At no time has anyone on behalf of abattoir management contacted Mr Blackadder to offer him work. Mr Blackadder was told he would be required to take payment of all accrued entitlements. All entitlements were paid and on 20 January 2003 Mr Blackadder received an Employment Separation Certificate from abattoir management. He asked whether he was allowed in according to a list held by the security guard. The guard made a call and asked, "Should I admit Colin Hambly?". After the call, the guard said, "You will not be admitted today or any other day". On 16 October 2002, Mr Hambly received an Employment Separation Certificate. He was told no work was available. On 13 February, the last occasion on which Mr Hambly made an inquiry of abattoir management, he spoke to Mr Marshall and asked whether any further employment would be available at the abattoir. Mr Marshall said he would send Mr Hambly by post an application form for work at the abattoir. No such form was sent. On 25 February 2003, Mr Hambly wrote to Mr Marshall saying, "When we spoke you indicated that you would also send me an application for employment form that I requested". Mr Hambly says he remained available for work until mid 2003. However, Mr Hambly did not keep copies of those letters. Mr Swain did not receive any offer of re-employment from the abattoir and on 16 October 2002 he was provided with an Employment Separation Certificate. Mr Swain has not heard from the abattoir since that date apart from a conversation he had with Mr Marshall on 18 January 2003 when Mr Swain said he wanted to apply for a boning job and was told the abattoir was not employing labour at that time. He says he was available for work. Mr Delaforce was told he was not on the list. On 29 November 2002 at 2.30pm, Mr Delaforce received a letter dated 28 November 2002 offering him work on 29 November 2002. At 3.20pm on 29 November 2002, Mr Delaforce attended the abattoir and told Mr Marshall that he was available for work. Mr Marshall noted Mr Delaforce's willingness to work. On 2 December 2002, Mr Delaforce sent a letter to Mr Marshall advising that he appreciated the offer of work for the day on 29 November 2002 but for the period Monday to Wednesday of every week Mr Delaforce had accepted casual employment elsewhere. Mr Delaforce advised that he would make himself available for work at the abattoir on Thursdays and Fridays. Mr Delaforce worked at the abattoir on 5 December 2002. On the afternoon of 5 December 2002, Mr Delaforce received a letter dated 4 December 2002 offering him employment for 5 December 2002. Mr Delaforce says he remained willing and able at all times to work subject to those occasions when he says he was compelled to take on casual work because the abattoir did not offer any continuity of employment. Mr McKenzie asked whether he could come back to work then. Mr Marshall said, 'Not at the moment, there is no work for you'. Mr Marshall said, 'We've just got so many coming in and there is not enough work for you at the moment'. Mr Marshall said he would let Mr McKenzie know when work was available for him. Mr McKenzie was told he was not on the list. On 18 September 2002, Mr McKenzie attended a meeting of workers outside the abattoir gate. Work was available for Mr McKenzie for 18 September 2002 but consistent with support to fellow workers, Mr McKenzie did not work that day. He was told it was not. Mr McKenzie again presented himself for work that day and was told by the security guard that his name was not on the list of workers to be allowed to enter the abattoir for work that day. Mr Marshall told him that he was not on the list of those to be offered employment that day. Mr McKenzie said to Mr Marshall, 'Can you call me and let me know when you are offering me work? ' Mr Marshall said, 'Okay'. Mr McKenzie asked 'When is that likely to be?'. Mr Marshall said, 'When work becomes available'. Mr McKenzie said that he had casual work elsewhere but would check the roster and see whether he could be available. He was available. He called Mr Marshall and told him he was available. Mr McKenzie was told to be available at 7 o'clock and asked Mr Marshall whether 'this will be a continuing thing'. Mr Marshall said, 'No, you are being offered work only one day at this stage'. Mr McKenzie asked when he could be expected to be offered more work and was told, 'when it becomes available, maybe'. Mr McKenzie presented himself to the supervisor on the slaughter floor and was told, "You will be doing hot neck boning. Have you done that before? " Mr McKenzie said he had never done that work. Mr McKenzie undertook the work with another fellow worker. Mr McKenzie found the work difficult and the foreman allocated him to another job. Mr McKenzie spoke to Mr Marshall and asked for work on the slaughter floor. On 28 November 2002, Ramsey Packaging wrote to Mr McKenzie asserting that Mr McKenzie had not disclosed an injury that prevented him from performing hot neck boning tasks. Mr McKenzie asserted that he had suffered some aggravation to his shoulder. A few days after 27 November 2002, Mr McKenzie made enquiries of Mr Marshall as to whether further work would be available and was told that there was no work for him. Mr McKenzie sought payment of entitlements, was paid and was given Employment Separation Certificates on 16 October 2002 and 23 December 2002. Mr Davis was present. Mr Davis advised Ms Mortimer that the abattoir workers had resolved that none of them would go back to work until all of the workers were allowed to work. Ms Mortimer said that Mr Ramsey would be 'sticking to his list of workers'. Mr Moss said he could not work that day in support of other workers not offered jobs. Mr Moss did not work that day in support of fellow workers. On that day Mr Moss, Mr Paul McKenzie and Mr Davis formulated a compromise proposal to try and secure a re-engagement for fellow workers. Mr Moss was engaged on 18 September in AIRC proceedings for the following day. Mr Moss was not offered any further work at the abattoir except that on 27 November 2002, Mr Moss received a letter from Ramsey Packaging dated 26 November 2002 offering him work for the following day, namely, 27 November. Mr Moss, in any event, could not work at the abattoir on that day because he had taken work in Casino. On 16 October 2002, Mr Moss received an Employment Separation Certificate from the abattoir. On 24 October 2002, Mr Moss asked Ms Mortimer whether there was any work available for him at the abattoir and was told no work was available. Mr Moss sought other casual work and secured a job as a boner in late October 2002 with North Coast Meat Company at Casino. Mr Moss worked there as a casual until August 2003 when his position was made permanent. He was working casually for that company on 26 and 27 November 2002. Mr Brooks entered the abattoir. On that day, Mr Ramsey stood outside the locker room before the workers including Mr Brooks went into the boning room. Mr Brooks says he heard Mr Ramsey say, "Now that this shit fight is over, you work with me, we'll be right. Everyone will be right and I'll have the new agreement in your hands in two weeks". At the completion of work on that day, Mr Broadrick told Mr Brooks that he would be notified when the abattoir required him again. On several days after 20 September 2002, Mr Brooks made enquiries about the availability of work and was told on each occasion by office staff that no work was available. Mr Brooks obtained other casual work. The only two days of work offered to Mr Brooks were 20 September 2002 and 27 November 2002. On 16 October 2002, Mr Brooks obtained an Employment Separation Certificate. He was not. On 18 September 2002, Mr Campbell again presented at the gate and asked whether he was on the list for work and was told he was not. Later that day, Mr Campbell was offered a day's work for the following day. He did not work that day, 19 September 2002, because of a commitment to support fellow workers not offered work. On 24 November 2002, Mr Campbell travelled to Queensland to look for alternative work. Mr Campbell was offered work for 27 November 2002 but was not able to work on that day as he was in the Mackay region seeking other work. In late December 2002, Mr Campbell was confronting financial difficulties and sought payment of any outstanding entitlements. He received them on 17 January 2003 together with a Separation Certificate. He was told that he was not to be allowed into the abattoir for work. On 19 September 2002, Mr Forrest was offered one day's work for the following day "to be paid at labourer's rates". On 20 September 2002, Mr Forrest presented for work and was allowed to enter the abattoir for work. Mr Forrest assembled his work clothing, got dressed, left the locker room and approached Mr Broadrick. Mr Ramsey was addressing 80 to 90 workers at that time. Mr Forrest says he has a clear recollection of Mr Ramsey saying, "This is how the place will be run now, no RDOs, one sick day and you will be gone, you will be paid the federal award until such time as a new agreement is worked out. There will be no tally system and you will be paid in accordance with the weight per kilo of the box". Mr Forrest handed Mr Broadrick a full Medical Clearance Certificate. Mr Broadrick gave the certificate to Mr Ramsey who told Mr Forrest in unpleasant language that he would not be undertaking boning work and if he did not like it he could leave. Three times the following week Mr Forrest presented at the gate of the abattoir and was told that his name was not on the list for work. Mr McKenzie was told that his name was not on the list. Each morning during the week starting Monday 16 September 2002, Mr McKenzie attended the front gate of the abattoir and asked whether he was on the list for work (except Friday 20 September 2002) and was told that he was not on the list. On Friday 20 September 2002, he was told he was on the list. Mr McKenzie went back to work as a boner that day. Mr McKenzie had not received any contact or telephone call but was simply advised on presenting at the gate that work would be available on that day. On the following Tuesday, Wednesday and Thursday, Mr McKenzie was told the same thing. On Thursday 26 September 2002, Mr McKenzie telephoned Mr Marshall and said that he would not attend the abattoir any longer to see if his name was on the list but would call each morning instead. Mr McKenzie made a telephone call to the abattoir every day for a week at approximately 6.00am and was told by Mr Marshall and Mr Allen that his name was not on the list for work that day. After taking these steps, Mr McKenzie told Mr Marshall in a telephone call to please let him know if further work would be offered to him. Mr McKenzie received no offer of work apart from 20 September 2002. On 16 October 2002, Mr McKenzie received an Employment Separation Certificate. On 16 December 2002, Mr McKenzie asked to be paid any outstanding entitlements. Mr Young asked whether work was available for his wife on that day. He was told Susan Young would not be required. Mr Young says that having regard to the resolution of the men, he did not present for work on 17 September 2002. On 19 September 2002, Mr Young handed a note of a request for the payment of entitlements to the guard at the abattoir gate. On 20 September 2002, Mr Young was told that he was not on the list for work that day. Mr Young did not receive any further offers of employment from the abattoir and has not worked there since. Attempts were made by a number of the workers to secure employment on 19 and 20 September, throughout the course of the following week and during October and November. All of these men had worked for the South Grafton Abattoir during the days of operation by Gilbertson [115]. The relationship had been a long-standing one. In any event, each one of the 12 employees had been engaged in full time employment at the South Grafton Abattoir from either March or April 1998. Yet, during a period of re-engagement, none of the 11 former employees were offered full time work or any period of employment of any duration such as consistent weekly casual employment. Offers of employment were made to some of these former employees and the limited scope of that engagement might well give rise to certain inferences that the offers were not genuine offers of work. According to Mr Blackadder who was not cross-examined or challenged, he received periodic payments until 8 December 2002 and was told thereafter that there was no work available for him. As to Mr Hambly, he made attempts to secure work on 17, 18, 19 and 20 September 2002, to no avail. Mr Swain sought employment by his letter of 12 September 2002, to no avail. 308 On 17 September 2002, Mr Delaforce was offered work for the following day but did not take up that offer of one day's employment because he was trying to secure a general resumption for work both for himself and all workers. Together with Mr Moss he had formulated a proposal to that effect. On 19 and 20 September 2002, he was present before the AIRC. 309 On 28 November 2002, he received the letter dated 26 November offering him work on 27 November 2002, that is, one day's employment offered after the event. On 29 November 2002, Mr Delaforce received a letter dated 28 November 2002 offering him work for the day on which the letter was received. On 29 November 2002, Mr Delaforce spoke to Mr Marshall and told him he was available for work. Not surprisingly, these very transactional offers of work for a day here and there (sometimes after the event) caused some individuals to seek work otherwise. 310 On 2 December 2002, Mr Delaforce told Mr Marshall that he had taken work for the period Monday to Wednesday of every week. On 4 December 2002, Mr Delaforce was offered work for a day on the following day on the slaughter floor. Can it seriously be said that these transactional offers of work on a day from time to time episodically is anything other than a refusal to employ in the context of a group of men who had been long term full time employees since the day on which the abattoir was re-opened? A similar pattern emerges in relation to Mr Paul McKenzie, Mr Moss, Mr Brooks, Mr Campbell, Mr Forrest and Mr McKenzie. It is true that on 16 September and 17 September 2002 a position had been taken by many of the workers that none of the former employees would return to work until all workers were allowed to work but these actions were part of the immediacy of a response to the dismissal conduct designed, in fact, to secure work for all. 311 On 18 and 19 September proceedings before the AIRC occurred to test the validity of the conduct. Once it became apparent that the further proceedings in the AIRC would not secure a return to work for all and Mr Ramsey had refused to consider the compromise proposal of Mr Delaforce and Mr Moss [181], thereafter, no offers of work were made other than particular offers of one day to particular individuals from time to time. In the case of Mr Brooks and Mr Forrest, each of those men give evidence of an address by Mr Ramsey on 20 September 2002 concerning his success in achieving particular conditions of employment under which the abattoir would function. That evidence suggests that Mr Ramsey was influenced both in the termination conduct and in the approach to recruitment of establishing a workplace which did not exhibit the conditions which had been the subject of dissatisfaction in the past. 312 On 20 September 2002, Mr Forrest says that he heard Mr Ramsey addressing approximately 80 to 90 workers who had been re-engaged by that time. Mr Ramsey was explaining the new features of the conditions of employment which would prevail in the post re-engagement environment as compared with the previous conditions [306]. The evidence of these witnesses gives rise to an inference that in re-employing a cohort of employees to enable the abattoir to resume orthodox operations, a range of jobs or positions falling within the field of task specific activities characterising abattoir operations (see generally [106] --- [115]) were filled, that is, offers made and individuals employed and others not. The applicant is not in a position to give evidence of which offer was made for what position to which individual on what particular day and the person who was appointed. That information lies within the knowledge of the respondents. Nevertheless, the abattoir opened. It functioned and continued to function. The evidence shows that by 20 September 2002, 80 to 90 people at least were re-engaged. I infer that all of the positions occupied and the tasks undertaken by the 12 individuals in issue here from which they were dismissed, remained as positions to be filled and were filled, among many other positions. The effect of the contention is set out in the matrix below. There is no pleading of the facts giving rise to the assignment but Mr Hatcher in submissions says that the evidence demonstrates that each employee was told their employment had been transferred and thereafter the transferee paid the wages of the employee. 315 It is true that wage slips for a number of the employees demonstrate that an entity other than the original employer was making wage payments. However, there is no evidence that any of the employees consented to an assignment or transfer of their employment. No new AWA was submitted to any of the employees which might have actively drawn to the attention of each individual the proposal to transfer their employment to a new entity and in the face of which an actual or implied consent might have arisen. The payment of wages by one Ramsey company might simply have reflected an administrative arrangement within the Ramsey group of companies for the discharge of that obligation. I can find no evidence which satisfies me that an assignment of the AWA occurred. It is, of course, indisputable that (apart from a statutory provision to the contrary) the benefit of a contract entered into by A to render personal service to X cannot be transferred by X to Y without A's consent, which is the same thing as saying that, in order to produce the desired result, the old contract between A and X would have to be terminated by notice or by mutual consent and a new contract of service entered into by agreement between A and Y. The rule is so strict that if the contract is between individuals on both sides and X dies, the contract of service is immediately dissolved --- Farrow v Wilson (citation omitted) . The evidence of the pay slips do not sustain an inference that the presumptive assignment was ever accepted by any of the employees. In Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors [1998] FCA 1465 , Ryan J at pg 9 expressed doubt whether the nomination of a new employer on pay slips, the issuing of group certificates and the payment of superannuation contributions could give rise to an inference that a presumptive assignment was ever accepted by the individual employees. Further, there is no evidence which demonstrates that the precise inter-relationship between the respondent entities or any other entity within the Ramsey group of companies relevantly associated with the abattoir operations, was ever brought to the active understanding of the employees. The much more likely inference is that any employee who became conscious of the title of a particular entity assumed that entity discharged an administrative organisational role on behalf of the relevant employer. There is no basis on the evidence for elevating those matters to the position of an actual or implied consent to an assignment. In addition, as between the abattoir operation and employees, the evidence does not suggest any conscious differentiation between particular entities. Exhibit 148 identifies the various methods adopted by the respondents for the description of the respondents. Examples are these. Deponent/Exhibit No. The operation was the South Grafton Abattoir and the particular arrangements of entities and the roles they performed in the conduct of the abattoir was a matter of internal domestic organisation. The argument is put this way. Clause 17 deals with shortages of stock. The clause creates certain consequences in the circumstances of the clause. Clause 46 deals with termination, change and redundancy. The clause applies in respect of full time and part time employees in the classifications described within the AWA. For the purposes of the AWA, the terms 'seasonal factors' and 'shortages of livestock' refer to the following industry features 'climatic features such as droughts, floods and fires and changes in the seasons; and animal breeding cycles' (see cll 46.5 and 46.6). 320 Redundancy is defined by cl 46.14 in these terms: 'where an employer has made a definite decision that the employer no longer wishes the job the employee has been doing to be done by anyone pursuant to par 46.8 "Introduction of Change", and that decision may lead to the termination of employment, the employer shall hold discussions with the employees directly affected and with the Union to which they belong. ' Clause 46.8 deals with 'Introduction of Change' and provides 'where the employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and the Union to which they belong' . A plant closure is a major change in production. Clause 46.33 deals with severance pay and provides 'where an employee is to be terminated pursuant to pars 46.14, 46.15 and 46.16 of this clause, subject to further order of the AIRC, the employer shall pay the following severance pay in respect of a continuous period of service' . Clause 46.34 then sets out incremental entitlements to severance pay. For individuals who have been employed for a period of approximately four years or more, an employee under 45 years of age would be entitled to 12 weeks severance pay and an employee over 45 years of age would be entitled to 15 weeks severance pay. 321 Accordingly, the closure of the plant due to major changes in production, falls within cl 46.8. Terminations arising from that circumstance fall within the redundancy provisions of cl 46.14. Such terminations would attract significant severance pay entitlements. However, if the terminations are characterised as a direct result of 'shortages of stock', considerable savings accrue to the employer. In other words, the operator of the abattoir had a financial incentive to call, in aid of a termination of contracts of employment by Ramsey Companies related to it, an explanation that did not involve making severance payments whereas terminations of employment derivative of genuine production changes at the abattoir would involve such payments. 322 The applicant invites an inference to be drawn that a claim of a stock shortage was invoked to effect a reduction in employment levels in response to the termination of the AWAs by closing the plant, terminating the contracts and then re-opening shortly afterwards with those employees who were willing to accept Mr Ramsey's conditions pending a preferred new agreement. The explanation of a stock shortage in the context of the actual events is said to be consistent, as a matter of inference, with the prohibited reasons alleged. Mr Ramsey, from the outset of his operations stressed the need for the particular conditions contained in the AWAs [102] to [105] and [112] and notwithstanding the failure to satisfy the 'no disadvantage test' sought and obtained AIRC approval of the AWAs arguing strongly for the economic need for the AWA conditions and that without the benefits conferred on the employers by the AWAs, the enterprise could not re-open [119]. Similar concerns were put by Mr Ramsey in discussing the dissatisfaction with the conditions identified by some of the employees in contention here [164] and [165] and a bonus system was proposed and implemented [171] and [172] on terms that failed, in its practical application, on the evidence of Mr Delaforce, to yield bonuses. A return to award conditions was perceived by Mr Ramsey to be economically unacceptable. At [269], the immediacy of the notification of a stock shortage [21 August 2002] and the AIRC order terminating the AWAs [19 August 2002] is identified together with subsequent events. Plainly, any stock shortage did not cause the abattoir to close in an enduring way because the abattoir re-opened, re-employed a cohort of employees and commenced operations almost immediately. Equally clearly, the economic consequences of a workplace without the employers preferred conditions, the subject of concern from the outset, was unacceptable. 323 An inference is open that Mr Ramsey took steps in response to the order of the AIRC effecting a termination of the AWAs to deal with the consequence of that order. Those steps did not involve abandoning processing operations and closing down the abattoir because it was sub-economic but involved steps to place the operations on the footing of a particular cohort of employees on particular preferred terms and conditions and one method was to invoke the stock shortage provisions, close the abattoir, terminate the contracts without severance, re-open, re-employ and re-commence operations in a new environment. The evidence of the centrality attached by Mr Ramsey to the preferred conditions and the conjunction of events do suggest as a matter of common experience that the steps taken by Mr Ramsey were designed to effect a reduction in the complement of workers and establish conditions on a footing more acceptable to him. The dismissal of all employees remains, nevertheless, a dismissal of each individual employee and the refusal to re-employ the former employees in contention here can fairly be seen, as a matter of inference, as part of a mechanism for effecting an enduring, final and operative dismissal for a reason related to historical dissatisfaction with conditions and Union agitation for perceived better conditions. The respondents say these notions of discrimination and victimisation are central to the operation of Pt XA and further, the proper construction of the provisions of Div 2 of the Part has the effect of introducing an additional qualification upon that which must be established in order to demonstrate conduct in contravention of Div 3 and particularly s 298K of Div 3. 325 The argument is this. Section 298C applies Pt XA 'only to the extent provided for by Division 2' . Rather the section, it is said, requires proof of the discriminatory dismissal of an employee for a prohibited reason. The essential difficulty with this construct is the failure to recognise that the legislative expression of the objectives of the Part is to be found in prohibiting nominated conduct by an employer carried out for a reason falling within s 298L(1). That is the formulation that captures prohibitions upon discriminatory conduct or victimisation. It is the conjunction of the conduct carried out for a prohibited reason (among others) that gives the s 298K conduct its discriminatory character. No other element need be superimposed upon the sections. That, however, is not to deny the relationship between the objects recited in s 298A and the language of implementation in s 298K and s 298L. Those sections might generally be described in terms of prohibiting the vice of discrimination and victimisation but the precise formulation of the method of implementation is to be found in 'conduct' for 'a prohibited reason'. The true role of Division 2 is not to impose a limitation upon the plain words of other provisions of the Act but to plot a point on the constitutional continuum of ensuring the Act in all its provisions is a valid law of the Commonwealth. See generally Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; [2001] 112 FCR 232 per Wilcox J at [57], [70] and [73]. 328 The respondents say that this notion of threshold discrimination has particular resonance in the application of s 298V also within Pt XA with the result that before s 298V can have any operation, the applicant must adduce evidence that demonstrates a reasonable hypothesis that conduct occurred for a prohibited reason and that such evidence was unchallenged or unaddressed. It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. Apart from the criminal character of that conduct, the section did not place an onus upon the accused to disprove the allegation. His Honour observed that 'while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, [the section] provides, in effect, that the allegations of the prosecutor shall be sufficient in law to "discharge" that onus. In that case [at 59] I noted that s 298V reversed the onus of proof not only with respect to the dominant reason for the relevant conduct but with respect to all operative reasons for that conduct. In National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90, Weinberg J at [50] observed: 'By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise' . See also Wilcox J, Greater Dandenong City Council v Australian Municipal, Administrative and Clerical Services Union (supra) at [122] and Patrick Stevedores Operations No. 2 Proprietary Limited & Ors v Maritime Union of Australia & Ors (1998 --- 1999) [1998] HCA 30 ; 195 CLR 1 per Gaudron J at [123]. It is for this reason that s 5(4) is of such importance --- it has the effect of shifting the onus of proof to the employer with the result that the employer is obliged to prove a negative if he is to avoid being found guilty of the offence charged if all the other facts and circumstances constituting the offence are proved. The onus so cast upon the employer is to prove a negative on a preponderance of probabilities'. This reflects the existing provisions in the equivalent offence provisions of the IR Act which are to be repealed and replaced by Part XA. They are included because of the difficulty for an applicant establishing the prohibited motive in these kinds of cases. The majority judgment in David's Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of "proving otherwise" upon the respondents. The reasons [95] to [114] demonstrate, it is said, that evidence was available by reason of inferences that the dismissed picketers were actuated by dissatisfaction with their industrial conditions, that the employees banded together in part for that reason and that a statement by a David's Distribution management officer (Mr Johnson) provided evidence of at least a serious question to be tried of a reason for dismissals which was a prohibited reason. The evidence of a prohibited reason concerning Mr Johnson was not denied by him. David's further contended that the termination of employment affected all the picketers equally, no individual was selected and the only inference open was that termination was referrable to picketing conduct. David's contended that because the evidence was consistent with non-prohibited reasons, the mere allegation of a prohibited reason cannot operate to place an onus upon the respondents. ... The statement of Mr Johnson was itself evidence that there was a serious question to be tried that there was a different or additional reason for the dismissals, which was a prohibited reason. 336 Notwithstanding the inferences drawn from the evidence concerning the picketers and the failure to answer evidence against Mr Johnson, the statement of principle at [109] seems to have been put by their Honours as a matter of broad principle, namely, it (s 298V) 'enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise' . The evidence relied upon by David's was not of sufficient weight to deprive the NUW of the benefit of the presumption in the proceedings before North J. Mr Ramsey has chosen not to give any evidence on any of these matters or to answer directly, from his own knowledge, the allegations of prohibited reasons for the identified conduct. To the extent that the section operates upon some evidence of a reasonable hypothesis, inferences are open unrebutted of an hypothesis consistent with the allegations made by the applicant. 338 There is no doubt the applicant has the onus of establishing the causes of action on the balance of probabilities but s 298V effects a discharge of that onus once the relevant conduct is proven and the allegation of a prohibited reason made. Although the respondents rely upon observations of Ryan J in Transport Workers' Union v De Vito (2002) 140 IR 33 at 40, his Honour was simply observing that when the conduct itself is put in issue, the applicant has an evidentiary onus of establishing that matter before the respondent is called upon to satisfy an onus of proving a reason other than the alleged prohibited reason. The two classes of conduct asserted here are 'dismissing an employee' and 'refusing to employ another person'. It may be that the content of other classes of conduct, 'altering the position of an employee to the employee's prejudice' or 'discriminating against another person in the terms or conditions of an offer of employment', require greater forensic evidence of the character of the conduct before an onus as to a prohibited reason falls to the respondent. In any event, that is not the case here. 339 The respondents rely upon the observations of both Barwick CJ (in dissent) and Mason J (in the majority) in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. In that case, GMH dismissed an employee who was a member and delegate of the relevant union, on the articulated basis of the employee's unsatisfactory attitude to work and supervision. Section 5(1) of the Conciliation and Arbitration Act 1904-1976 (Cth) prohibited GMH from dismissing Bowling by reason of his being a member or delegate of the union. The majority of the industrial court convicted GMH of dismissing Bowling by reason of his position as a delegate. If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason. Two things should be noted. First, this is nevertheless a slight basis for enlivening the operation of the respondents' onus and, secondly, the reason in question had to be a 'substantial and operative reason' . A requirement to demonstrate some evidence of such a circumstance before enlivening the respondents' onus is neither surprising in the context of a requirement to demonstrate a substantial and operative reason nor applicable to a position where the question is whether the prohibited reason was simply a reason for the conduct. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. It seems to me that the hypothesis is the allegation and the evidence is consistent with it. 344 It should also be remembered that s 298K(1) has effected a change in the law put this way by Nicolson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69: 'In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change in the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" --- that is it would have to be a reason'. That passage has been approved by Goldberg J in Australian Workers' Union v John Holland Pty Ltd (2000) 103 IR 205 and Weinberg J in NUW v Qenos (supra) at [57] and [58]. 345 Reliance is also placed on the judgment of the Full Court of the Federal Court in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors [2000] FCA 430 ; (2000) 102 FCR 97. In so doing, the respondents press their contention that some element of discriminatory conduct must be demonstrated (as an additional element of the section), not merely conduct coupled with an allegation of a prohibited reason, there must be some evidence consistent with the discriminatory hypothesis and the conduct must be intentional conduct directed to 'an employee' or 'other person'. That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used). It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ" and "discriminate" . That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee. In Health Services , the actual conduct of singling out a union member for denial of a wage increase was held to constitute an 'injury' for the purposes of s 298K(1)(b) and in MUA v Geraldton Port Authority , an offer made to all employees in the relevant class of a redundancy package did not constitute an injury or a threat to injure an employee for the purposes of s 298K(1)(b) but simply an offer open to acceptance or rejection. 348 There can be no doubt that s 298K(1) addresses, consistent with the Full Court's observations in BHP Iron-Ore Pty Ltd v Australian Workers' Union & Ors (supra), bilateral conduct between an employer and an employee or an employer and another person. That simply means however that the circumstances of the conduct (dismissal, injury, alternation of position, refusal to employ or discrimination in terms and conditions of that offer of employment), affecting each individual must be examined to determine whether the conduct was undertaken for a prohibited reason. If the expression of the conduct involves a group of affected individuals, the circumstances of each individual within the group must be examined. The broader the group, the less likely as a matter of logic and probability that individuals within it are the subject of prohibited reasons for the conduct. A group of individuals will generally exhibit a unifying characteristic that defines the boundaries of the group and it may well be that that characteristic provides an explanation of the reason for the conduct affecting the group. Nevertheless, individuals within the group, upon examination, may on a bilateral basis, be the subject of conduct for a reason prohibited by the Act, as alleged. In other words, the dismissal of 50 employees would not provide an answer to a contravention of s 298K(1)(a) if 12 of those 50 were dismissed because they elected to take up membership of a union, act as a delegate, express dissatisfaction with conditions of employment supported by the union, or secured an order of the AIRC to address constructive dismissal in harsh and unjust circumstances. The question is always what was the conduct of the employer qua the employee, in the circumstances ? In many cases, where a broader group or class is the subject of the conduct, the employer will be in a position, and uniquely so, to demonstrate persuasively that the circumstances affecting the group reflect a level of abstraction that removes qua any member, a circumstance constituting a prohibited reason. Although the section requires an analysis of the bilateral circumstances between the employer and the individual, conduct applying to a group does not, by that circumstance alone , extinguish any operation for the section. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees . The relevant inquiry is whether an employer has, by the employers conduct, injured the position of an employee individually. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees. Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur. As in the case of an injury to an employee in his or her employment, an assessment of the threshold conduct calls for a comparison between the position of the employee in the circumstances prevailing before the acts of intervention by the employer and the position subsisting after those acts to determine the nature of the injury or the prejudicial alteration. If those acts occurred for a prohibited reason, a contravention of s 298K(1) arises. The conduct of dismissing an employee or refusing to employ another person does not call for such a detailed comparative forensic inquiry before conduct falling within s 298K(1) arises. In this case, the contention is that a number of individuals were placed in a worse position by reason of the intentional acts of the employer than before those acts occurred. Some individuals within the cohort of employees dismissed by the employer may not have been placed in a worse position by reason of their re-engagement quite quickly after the dismissal conduct. Others contend they were dismissed for a prohibited reason which endured into the conduct of a refusal to employ and the prejudicial deterioration of the position of each individual, examined separately, is caused by those acts. 350 Mr Hatcher contends that all employees at the abattoir were 'indiscriminately terminated'. In a sense, that submission swears the issue because the character of the discrimination lies in the question of whether dismissal occurred for the prohibited reason. No attempt has been made by Mr Ramsey or the respondents to adduce evidence demonstrating that the alleged reason was not the reason. The respondents rely upon the cross-examination of Mr Davis and the affidavit of Mr Brown to demonstrate that re-engagement was occurring almost immediately after the dismissals, that individuals received phone calls, some were available for work, others not and that no differentiation occurred between individuals offered employment. The evidence, does not establish those matters. That evidence could have come from Mr Ramsey but he chose not to adduce it. 351 The respondents further rely upon Heidt v Chrysler Australia (supra) and National Union of Workers of Qenos Pty Ltd (supra) as authority for the proposition that there must be demonstrated "differential treatment" by an employer as against an individual employee or other person or an identified class of persons as against others. The decision in Heidt v Chrysler (supra) concerned a challenge to the dismissal of an employee on grounds that the dismissal was actuated by reason of the employee's membership of the Union, his entitlement to an award and his membership of a Union that was seeking better conditions about which he was dissatisfied. To so argue would have been futile. It was a condition of his employment by the defendant that the informant become and remain a member of the organisation. The award was binding on the defendant with respect to all employees coming within the scope of the award, whether members of the organisation or not. I find that the defendant, in dismissing the informant, was not actuated by reason of the circumstance that the informant was a member of an organisation, nor by reason of the circumstance that the informant was entitled to the benefit of an ward. The passage, however, simply recognises that since all employees were required to be a member of the Union, there was no point in the respondent seeking to exclude Union membership. In NUW v Qenos , Weinberg J considered a proposal by an employer to undertake a "spill and fill" process to select those operators at particular manufacturing plants for retrenchment and whether adoption of a process of including all of Plant A's employees in the pool of retrenchment candidates involved a threat of dismissal, injury to employees in their employment or an alteration of their position to their prejudice. In BHP Iron-Ore Pty Ltd v Australian Workers' Union the Full Court determined that the reach of s 298K is limited in that it proscribes conduct which is directed to an individual employee or prospective employee, and not conduct directed to a broad class of employees. That decision is binding upon me. 354 Weinberg J recognises at [121] and [122] the susceptibility of what I might call distributed conduct (and not merely bilateral conduct) to the reach of s 298K, illustrated in the circumstances of Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (supra). That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron-ore Pty Ltd v Australian Workers' Union, albeit all individual employees. Dismissal of all employees for a prohibited reason is squarely within s 298K notwithstanding that they represent potentially a large group. Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost. The question is whether the conduct, from the standpoint of the individual, notwithstanding others, represents conduct carried out for a prohibited purpose. Some of those employees, from their individual standpoint, contend the dismissal was for a prohibited reason. They say the circumstances that give rise to that apprehension can be seen in the attitude of Mr Ramsey to the AMIEU, his hostility to the participation of the Union in the workplace and the consequences of Union engagement in various processes before the AIRC and the dissatisfaction nine of the 12 individuals were articulating about conditions of employment against the background of the steps taken by the Union. As to three of the individuals, their concern lies in the chronology of events arising out of their constructive dismissal and the subsequent treatment of the individuals consequent upon obtaining orders from the AIRC and particularly orders for reinstatement. 357 The dismissal of the entire cohort of employees does not provide an answer to the essential character of the contravening conduct in respect of the particular individuals. The legislation provides a mechanism for an employer to demonstrate that the apprehended and thus alleged reasons for the dismissal are misplaced and incorrect by casting an onus upon the respondent to demonstrate otherwise. 358 The same position obtains in relation to the conduct of refusing to employ the relevant individuals. In essence, the respondents say that in the case of each individual, the particular person was not available for employment, did not seek employment and was not denied employment. Moreover, before a refusal to employ an individual for a prohibited reason can arise, the individual must demonstrate that a vacancy was available to be filled. 359 As to these matters, it is clear that the individuals did seek employment. Enquiries were made of management staff as to the availability of the work. Steps were taken to refuse immediate employment by some, but expressly for the purposes of trying to secure a return to work for all employees. Mr Delaforce and Mr Moss formulated a compromise proposal directed to securing the return to work for all employees. Some individuals were episodically offered employment on a day, sometimes after the event. Enquiries were made of management and in the immediacy of the dispute and enquiries were made at the gate as to those persons who were on the list for employment. The evidence demonstrates that jobs were available and vacancies were being filled. Subsequent offers, even though episodic, demonstrate that vacancies were there to be filled. Notwithstanding the lengthy period of employment on the part of the 12 individuals with the South Grafton Abattoir from the commencement of operations by Mr Ramsey and the pre-existing historical connection with the abattoir in the Gilbertson's days, none of these individuals (leaving aside Susan Young) were offered full time employment or any sustained period of casual employment. 360 The historical factors which give rise to inferences that the alleged prohibited reasons were a reason for the conduct also give rise to inferences that those reasons were a reason for the refusal to employ the particular individuals. The proximity of the timing and evolution of the events are sufficiently related that there is a necessary inter-connection between the two. 361 On this issue, the respondents say this. It concerns actual and not theoretical employment'. Moreover, there is no evidence that actual employment might otherwise arise but for the alleged refusal. The allegation of refused employment is thus entirely theoretical. 364 Apart from these authorities, the notion of a refusal to employ a person has been the subject of discussion in Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435, per Ryan J; Australasian Meat Industry Employees' Union v Belandra Pty Ltd (2003) 126 IR 165 per North J and Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19. Although the decision of his Honour in Maritime Union of Australia v Burnie Port Corp. Pty Ltd was the subject of an appeal to the Full Court ( Burnie Port Corp. Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440), the approach adopted by Ryan J was not attended by error in any respect, on the issue of 'refusal to employ'. Her Honour, Branson J, in Employment Advocate v Barclay Mowlem Construction Ltd found the reasons of Ryan J in the Full Court persuasive and they were these. There is no relevant distinction between refusing to employ an individual and an election by an employer to appoint other individuals to the position. A decision to employ someone else is necessarily a decision not to employ another. That reasoning was adopted by Branson J in finding that a respondent had refused to engage an independent contractor by deciding to award the contract to another party. 365 In the present case, the succession of offers of re-employment to individuals after the dismissal of the cohort of employees, necessarily involved a refusal to employ other individuals who were, on the evidence, seeking employment and re-engagement. The evidence of Mr Forrest demonstrates that by 20 September 2002 there were at least 80 to 90 workers employed at the abattoir. Plainly enough, vacancies existed and were being filled. In AMIEU v Belandra , North J took the view that the statutory context in which s 298K(1)(d) appears suggests that a refusal to employ arises even though there may be no available vacancy. That result arises, in his Honour's view, because, the legislation deals with the issues of "conduct" and the "reasons" separately. Further, that dichotomy is carried into the operation of s 298V. His Honour considered that the Parliament has expressed its view about the proper balance between parties in controversy on these issues so far as the discharge of the obligations of proof are concerned. As a result, even though it may seem anomalous that an obligation might fall to a respondent to demonstrate that no prohibited reason operated even though a vacancy did not exist, once an applicant proves the conduct of refusal, an 'onus then shifts to the respondent to disprove the prohibited reason alleged. At this point, the absence of a vacancy may provide an innocent explanation for the conduct. Depending on the circumstances giving rise to the absence of a vacancy, the lack of an available position may show that the reason for the refusal was not a prohibited reason' [51]. 366 The respondents criticise the decision in AMIEU and Belandra on the basis that the evidentiary problem discussed by his Honour does not arise in the context of a lack of a vacancy because the applicant can readily show, by evidence, if there is a vacancy. The evidence would demonstrate that someone else was employed or there was an advertisement placed in a newspaper or other forum for a vacancy. Mr Hatcher puts it this way: 'It's not as if one needs to get inside the mind of the person making the decision to know what personally moved him, as it is when one alleges a prescribed reason' . The contention is that the applicant must adduce evidence of an actual, not theoretical, vacancy and demonstrate a refusal to employ that individual for that vacancy. Once that level of precision is made out, s 298V operates. In the absence of that evidence, s 298V has no role to play. 367 It seems to me, in having regard to the threshold conduct of a refusal to employ another person, required to be established by the applicant before s 298V has any operation, the phrase logically contemplates the existence of a position to be filled or a position in prospect within the boundaries of reasonable temporal limitations. Evidence may demonstrate such a position or demonstrate in respect of a particular industry, a systemic process of casual employment or a recurrent demand within a particular industry for full time employees. It seems to me the applicant would need to adduce some evidence of a vacancy or prospective vacancy and not simply a theoretical possibility of a position. In the context of this case, the approach adopted by North J does not need to be considered further because the evidence demonstrates that a process of re-engagement was taking place, vacancies existed and were being filled. Vacancies continued to become available and, in some cases, resulted in offers, although limited, being made to some of the individuals in contention here. The circumstances of the efforts made by the individuals and their evidence of vacancies being filled is clear [306]. Accordingly, s 298V operates and it has not been discharged. By paragraph 20 of the Further Amended Defence (Document 143), the First, Second and Fourth Respondents admit that in September, October and November 2002 each of those respondents commenced re-employing labour at the South Grafton Abattoir. 368 Although a number of propositions on the facts were put by the respondents on the question of a refusal to employ and the absence of any demonstrated differential treatment, I accept the submissions of the applicant that upon a review of the evidence, a number of these submissions are not supported by the material I cannot identify evidence to support the following propositions although, in determining the applicant's submissions on this particular aspect of the matter, I accept entirely and unreservedly that counsel for the respondents put, in submissions, his understanding of the state of the evidence. • Everyone in the slaughter room was offered re-engagement when the slaughter room commenced operations. • All complainants were offered re-employment at two stages following re-opening of the abattoir. • Some members of the consultative committees were re-employed. • The bulk of the individuals who sought to cancel their AWAs went back to work. As to the state of the evidence generally, I am satisfied the evidence supports the inferences I have drawn. The evidence giving rise to those inferences and the ultimate facts in issue have not been the subject of any evidence from the respondents and in particular, from Mr Ramsey. It seems to me, consistent with the approach adopted by Sackville J in Prentice v Cummins (supra) that as a matter of principle, an election by the respondents in the circumstances of the foundation for the 'no case' submission provides a proper basis for drawing inferences consistent with the principles identified in Jones v Dunkel (supra), adverse to the respondents. 371 However, it is not necessary to rely on such inferences in making dispositive findings on the ultimate facts in issue. The applicant has established two classes of conduct within s 298K(1). The dismissal conduct is admitted. The refusal to employ conduct is established. Having adduced evidence probative of the conduct, the assertion of the prohibited reasons gives rise to the operation of s 298V thus enlivening the presumption which discharges the onus cast on the applicant to establish the causes of action on the balance of probabilities and casts an onus on the respondents to prove affirmatively that the prohibited reasons alleged were not a reason for the conduct. 372 This approach to the operation of s 298K and s 298L is true in respect of both classes or conduct alleged in these proceedings. As to the specific conduct of refusal to employ, the evidence must establish the matters discussed at [367]. Once those matters are established on the evidence, s 298V does its work. In this case, the evidence of those matter is clear. 373 The respondents contend that the Act as a matter of construction in the light of the authorities requires the applicant to establish facts which give rise to an hypothesis that the conduct was carried out for a prohibited reason thus revealing, at least, the ingredients of the complete causes of action before s 298V has any operation. Establishing conduct in contravention of s 298K does not require the applicant to make out an hypothecated case of a prohibited reason. 374 The Act recognises that the field of reasons motivating a decision-maker within an employer to dismiss an employee or refuse to employ a person lies uniquely within the mind of that person and although evidence of secondary facts might give rise to inferences probative of the ultimate facts in issue concerning the reasons for conduct, the burden of proving reasons other than the allege prohibited reasons falls to the respondents. That onus has not been discharged. 375 However, even if the view put by the respondents is accepted that such an evidential burden does not arise until the applicant establishes an hypothecated case of a prohibited reason, the evidence in this case establishes at least a basis for an hypothesis that the conduct was carried out for the prohibited reasons alleged. No recourse to inferences in accordance with the principles in Jones v Dunkel (supra) is necessary to make out a basis for such an hypothesis. The tests, for example, articulated by their Honours Barwick CJ and Mason J [340] --- [343] in the context of the formulation of the particular provisions in question in that case, reflect a slight threshold of evidence. 376 Accordingly, each of the respondents has failed to demonstrate the alleged prohibited reasons were not an operative reason for the dismissal conduct. The First, Second and Fourth Respondents have failed to demonstrate that the alleged prohibited reasons were not an operation reason for a refusal to employ any one of the 11 individuals in these proceedings (that is, all claimants apart from Susan Young). 377 I am satisfied that the evidence demonstrates there is no relevant differentiation between the respondents in terms of the dealings between employees and the broad operation of the South Grafton Abattoir. No doubt, particular entities associated with or related to Mr Ramsey or entities controlled by Mr Ramsey employ particular individuals and equally, there is very likely to be particular administrative or domestic arrangements between those companies in the provision or performance of services and tasks in connection with the operation of the abattoir. However, whatever the content of those internal arrangements might be, an abattoir requires individuals to perform work in order to function. Those individuals might be employed by any one of a number of companies and be supplied or deployed under contractual arrangements with other entities either related to or, in a practical sense, connected with the operator of the abattoir. For all practical purposes, the question is whether the abattoir as a functional operation, required a cohort of individuals in order to perform the various task specific functions and whether steps were put in place during the period of re-engagement to offer employment to individuals, irrespective of the particular recruiting vehicle or entity used for that purpose. The evidence does not establish whether the Third Respondent was seeking to employ any person in the relevant period. Accordingly, the conduct of refusing to employ is confined to conduct on the part of the First, Second and Fourth Respondents. 378 I am satisfied that all four respondents have engaged in the contravention of s 298K(1) with respect to the dismissal conduct and the First, Second and Fourth Respondents have engaged in a contravention of s 298K(1) in respect of the conduct of a refusal to employ. I propose to invite the applicant to provide short minutes of order as to the declarations sought before making formal orders. As to the compensation question, that matter is discussed further below. Still received periodic payments from the Abattoir until 08.12.02. • No alternative employment mentioned in affidavit. • 3 casual week's casual butchering work in September and October 2002, most of which was for Cashels Wholesale Meats at Coffs Harbour. • Casual employment with the North Coast Mean Company (NCML) at Casino. (Has been working there since as a slicer in the boning room working the night shift and average about 24-32 hours per week). • Offered 1 day's work on 19.09.02, but did not work due to worker's resolution on 16.09.02. • Offered 1 day's work on 27.11.02, but did not work due to being in Mackay looking for work. • Unable to obtain alternative employment, despite applying for work with 2 employment agencies and several builders in the area. • Started to apply for some jobs in late October. Gained casual work with Caringa Enterprises Inc as a support worker for disabled people. This later became a permanent part time job. • Casual jobs moving lawns "here and there". • Support worker for disabled people with Caringa Support Services in Grafton: Casual worker (29 October 2002-mid 2003); Permanent part time (mid 2003 onwards). • Worked at abattoir on 26.11.02. Received Centrelink payments from September 2002-January 2003. • Offered 1 days work on 20.09.02. Went to work, but upon being told that he could only work and be paid as a labourer (cf boner), despite "Full Clearance" from Dr Michael Harding, he went home. Not offered any work by the abattoir since. • Centrelink payments from late September 2002-1 July 2003. Did not work on 18.09.2002 due to workers' resolution. • Some casual tiling work during the week of 19 and 20 September. • Continued to work as a farm labourer until middle of March 2003. • Was at all times willing and able to work subject to the occasions when he had to take on work following the lack of any offers from the abattoir. Received Centrelink payments. • From September 2003: weed controller. • 4 weeks commencing 16.09.02: voluntary work at Sunshine Club, an aged care program (3 days per week). Eventually became a casual employee of the contractor until 30.03.03. • Since April 2003: Regular work as a fence contractor. • 29 October --- early December 2002: casual cleaner at Blue Dolphin Caravan Park at Yamba. • Offered work on 29 November 2002. Did not work due to house cleaning job. • Since 31.07.03: 8-10 hours per week as a housemaid at Bent St Motel, Grafton. Since the terminations of employment were effected between 10 and 13 September 2002 with individuals receiving those letters within a few days of those dates, the termination of employment in each case was in place by, in effect, the end of that week. Accordingly, approximately 11 weeks of the financial year had expired leaving 41 weeks of the financial year. The applicant has then calculated the headline earnings each employee would have received, taken into account the earnings derived in mitigation of the loss and calculated the superannuation component each employee has lost to derive the total actual loss. In addition, the applicant contends that an amount of $5,000.00 should be awarded by way of additional compensation resulting in a total claim on behalf of each individual in accordance with the following schedule. I have accepted their evidence in its entirety supported by a bundle of documents provided to me by consent so far as the calculation of lost earnings and superannuation is concerned. I propose to hear further submissions from the parties in relation to the question of the claim for general damages in each case of $5,000.00 as no submissions were addressed to me on the principles to be applied in making that assessment. Section 298U(c) confers a power in the court to make an order requiring a person to pay compensation of 'such amount as the court thinks appropriate' . As to Mr Blackadder, he continued to receive payments until 8 December 2002 notwithstanding having received the termination letters in September 2002. I propose to hear further submissions from the parties concerning the calculation of compensation in his case. 382 In addition, I propose to hear further submissions on the question of whether a penalty ought to be imposed upon any of the respondents pursuant to s 298U(a) and if so the principles guiding the determination of such a penalty in all the circumstances and the principles guiding the circumstances in which an order ought to be made under s 356 of the Act that any penalty imposed upon the respondents be paid to the Employment Advocate. I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Justin Davis discharged the two roles described at [93] of the reasons resigning from both positions in February 2004. Relevantly for present purposes, Mr Davis was the principal Union official dealing with industrial issues concerning the South Grafton Abattoir from 1997/1998 until his resignation in February 2004. 2 By paragraph 4 of his affidavit, Mr Davis exhibits a true copy of a computer generated document he caused to be printed in September 2002 from electronic data maintained by the Federal Union of union membership details (J D-1). Mr Davis says the individuals described in the membership list under the full name of the individuals in the present proceeding are the individuals Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, M R McKenzie, P F McKenzie, Moss, J K Young and S J Young, in the proceeding. The Respondents say paragraph 4 is objectionable; JD-1 speaks for itself. The Applicant correctly says paragraph 4 simply relates the names appearing in JD-1 to the persons referred to in the F F A S C. The objection is not accepted. 3 The Respondents object to paragraphs 5 to 57 on the ground of relevance. 4 By paragraphs 5, 6, 7 and 8, Mr Davis describes his first visit (as a director of the Meat Industry Employees Superannuation Fund ("MIESF") on 22 May 1998 to the South Grafton Abattoir during Mr Ramsey's management, his engagement with employees on superannuation issues and the election by many employees to continue superannuation contributions to MIESF during employment at the abattoir under Mr Ramsey. Mr Davis describes his offer at that time to employees (and his invitation to sign an appointment document) on behalf of the AMIEU to act as a bargaining agent for abattoir employees in connection with Australian Workplace Agreements for the purposes of s.170VK of the Act. Mr Davis exhibits a document (JD-2) by which 96 employees purport to appoint the AMIEU as a bargaining agent for that purpose including Moss, J K Young, S J Young, P F McKenzie, M R McKenzie, Hambly, Brooks, Forrest and Campbell. 5 Mr Davis says he was present on 17 and 18 September 1998 when the AIRC conducted an important approval hearing into proposed AWAs to consider, on reference from the Employment Advocate, the "no disadvantage" test for the purposes of s.170VPB(3) of the Act, represented Union member employees of the abattoir who signed JD-2 (and purported to represent the Union), tended JD-2, gave a copy of JD-2 to Mr Ramsey's representative and made submissions as to whether compared directly with the relevant award or with undertakings offered by the abattoir employment group, the proposed AWAs satisfied the "no disadvantage" test and if not, whether approval was "not contrary to the public interest" for the purposes of s.170VPG(4) of the Act. Mr Davis exhibits a copy of the AIRC decision arising out of the approval hearing (Deputy President Duncan) of 23 October 1998. 6 Questions in the present proceeding raised on the pleadings include whether the AMIEU was seeking improved conditions for its members (or potential members) at South Grafton Abattoir (at all material times), whether there is any correspondence between matters raised by any one of the consultative committees and steps taken by the AMIEU, whether Stuart Ramsey knew whether the AMIEU was agitating to secure improved conditions and whether Ramsey knew particular individuals were members of the Union, whether an individual's membership of the Union was a reason for dismissal (and subsequent refusal to employ) in August and September 2002 or whether a member of the AMIEU was dissatisfied with his or her conditions of employment at the abattoir in circumstances where the AMIEU was seeking better industrial conditions for employees of the abattoir and whether that matter was a reason for the conduct. 7 The approval of the AWAs under Mr Ramsey's management was said by the abattoir employer group before the AIRC (as reflected in JD-3) to be central to economically sustaining operations at the abattoir. The Applicant says evidence of engagement by the AMIEU and its role in influencing or articulating positions on working conditions on behalf of Union member employees (and potential members) concerning the arrangements between the abattoir and its workforce, informed and influenced the disposition or state of mind of Mr Ramsey towards the AMIEU and, more particularly, towards those individuals in the proceeding who were associated with the AMIEU either by membership or by position as a delegate. In addition, the Applicant seeks to establish a relationship of influence between the members of each consultative committee of employees at the abattoir and the AMIEU which also informed and influenced the disposition or state of mind of Mr Ramsey towards the members of those committees. 8 Accordingly, the Applicant says evidence of matters described at paragraphs 4, 5, 6 and 7 are relevant and, taken in conjunction with other evidence, have probative value in establishing a tendency on the part of Mr Ramsey (and expressed as conduct on the part of the relevant employer entity) to act in a particular way or to have a particular state of mind at the moment in time when the relevant conduct occurred, namely, August and September 2002 and in the period September to December 2002. In addition, the Applicant says the history of engagement on and opposition to approval of the AWAs by officers of the AMIEU and the Union itself on behalf of Union members forms part of the narrative of events. Paragraphs 5, 6, 7 and 8 form part of the contextual narrative of events. Evidence of engagement by the AMIEU on behalf of nominated members commencing, at the threshold, with the economically important AWA approval processes and approval hearing, if accepted, is relevant to an assessment of the probability of whether Mr Ramsey knew the AMIEU and Davis had a role to play in industrial conditions at the abattoir and whether the AMIEU and Davis were seeking improved conditions for members (or potential members) at the abattoir over time leading up to and including the events in September to December 2002 and whether Mr Ramsey knew Brooks, Campbell, Forrest, M R McKenzie, P F McKenzie, J K Young and S J Young were members of the AMIEU. 9 The Applicant also supports the admissibility of paragraph 7 on the ground of "relevant tendency evidence". Objections to a number of paragraphs in the affidavits of Brooks, Campbell, Delaforce, Evans, Forrest, Hambly, M R McKenzie, P F McKenzie and J K Young are also supported by the Applicant on the ground of relevant tendency evidence. 10 In dealing with paragraph 7, the first paragraph to raise the question, I propose to set out the principles governing my approach to determining admissibility on such a ground. Apart from the claimed objections and responsive assertions of admissibility, no specific submissions have been addressed concerning objections to or reception of tendency evidence in the proceeding. 11 The principles, however, are these. Relevant evidence in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding; s 55(1); a notion that "can fairly be equated with the common law concept": Papakosmas v R [1999] HCA 37 ; (1999) 196 CLR 297, per Gaudron and Kirby JJ at page 312, paragraph [47]; although as Sackville J observed in Jacara Pty Ltd & Ors v Perpetual Trustees WA Ltd [2000] FCA 1886 ; (2000) 180 ALR 569 at paragraph [47] , the Australian Law Reform Commission ("ALRC") in its Interim Evidence Report, No. 26, noted the "minimal logical connection between the evidence and the fact in issue" required by the section. 13 Section 97 of the Evidence Act addresses the admissibility of evidence relevant to an issue in the proceeding but tendered in order to prove Mr Ramsey had a tendency to adopt a particular state of mind thereby making it more likely than not that Mr Ramsey had that state of mind when engaging in the dismissal conduct in August and September 2002 and the contended refusal to employ conduct in September to December 2002. 14 There is no sound distinction between characterising such evidence as "tendency evidence" which must satisfy the test of admissibility within the formulation of s 97 on the one hand and as "circumstantial evidence" directly probative of a fact in issue that need not satisfy s 97 , on the other. Evidence of previous conduct or a previous state of mind is itself circumstantial and once tendered as probative evidence that a person had a tendency to think or act in a particular way so as to enable conclusions to be drawn on the balance of probabilities that such a person thought or acted that way on the immediately material occasions, s 97 will apply to that evidence: Jacara v Perpetual Trustees (supra) at paragraphs [56] and [57]; Hoch v R [1988] HCA 50 ; (1988) 165 CLR 292; D F Lyons Pty Ltd v Commonwealth Bank 100 ALR 468 at 474. 15 Section 97 is in these terms. 17 Accordingly, the evidence is to be excluded if the Court thinks the evidence would not have significant probative value on one of two grounds; either by itself or by reason of an assessment of the evidence having regard to other evidence . The weight and therefore the probative value that might be attributed to the tendency evidence might be influenced by other evidence. The "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue: Dictionary, Part 1, Evidence Act , which reflects the relevance test of s 55. To be admissible under s 97 , the extent of the probative value must be significant. 18 Although the admissibility of evidence of tendency was thought in civil proceedings to depend simply on the relevance of the evidence to an issue in the proceeding or the extent to which evidence was logically probative of a fact in issue, s 97 rests admissibility on whether the evidence could rationally affect the assessment of the probability of the relevant fact "to a significant extent; that is, more is required than mere statutory relevance" : Zaknic Pty Ltd v Svelte Corp Pty Ltd (1995) 61 FCR 191 at 175-176 which probably means "clearly and strongly probative" of the fact in issue: Zaknic v Svelte (supra), "but something less than substantial probative value": see ACCC v CC [1999] FCA 954 ; 165 ALR 468, Lindgren J at paragraph [91] and the cases noted by his Honour at that paragraph and also at paragraphs [92] to [95]. 19 In the context of a criminal trial, in Hoch v R (supra) Mason CJ, Wilson and Gaudron JJ recognised at pages 294 and 295 that the criterion of admissibility is the strength of the probative force of the evidence and "that strength lies in the fact that the evidence reveals 'striking similarities', 'unusual features', 'underlying unity', 'system' or 'pattern' such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution"; although these features are not essential conditions of admissibility in every case: Pfennig v R [1995] HCA 7 ; (1995) 182 CLR 461. 20 Ultimately, "the probative value of the evidence as tendency evidence must depend upon the circumstances of the case. The factors to be taken into account will usually include the cogency of the evidence relating to the conduct of the relevant person, the strength of the inference that can be drawn from that evidence as to the tendency ... and the extent to which that tendency increases the likelihood that the fact in issue occurred": Jacara v Perpetual Trustees (supra), Sackville J, paragraph [76]. 21 The evidence, however, must first satisfy the characterisation as evidence of conduct on the part of Mr Ramsey or a tendency that Mr Ramsey has or had to act in a particular way or embrace a particular state of mind. That evidence must be relevant, that is, capable rationally of effecting the assessment of the probability of the existence of a fact in issue in the proceeding and the extent of the probative value must be significant. In making an assessment of whether the evidence reveals facts similar to the fact in issue (thus making the evidence relevant), Gummow J has drawn attention to the importance of identifying the materiality of the similar features as commonality of features may not necessarily reveal a feature relevant to the question immediately in controversy: D F Lyons Pty Ltd v Commonwealth Bank (1991) 28 FCR 597. For example, does the tendency evidence reveal a state or attitude of mind of Mr Ramsey concerning matters directly related to the reason for the dismissal conduct and the contended refusal to employ or is the evidence more general, more broadly based and perhaps of little probative value? A fact "is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand": D F Lyons v Commonwealth Bank (supra), Gummow J at 476. 22 It should, however, be remembered (absent any question of the operation of s.298V), in the context of a case such as this one, that the reason or reasons for engaging in conduct lie entirely within the mind of the relevant decision-maker. The state of mind of that person can only be established or proven (absent documents decisive of the question emerging on disclosure) as a conclusion based on inferences drawn from evidence (facts) of conduct or expressions of attitude towards matters relevant to the ultimate facts. Such inferences might be drawn out of many examples of conduct or expressions of attitude and in that sense be collectively of significant probative value so as to make the Court reluctant to affirmatively conclude that the tendency evidence "would not have significant probative value" for the purposes of s.97 of the Evidence Act . 23 In such a case and where statements have been exchanged for some considerable time prior to trial so that lengthy notice has been given of the tendency evidence and no prejudice in responding to the evidence arises, the Court may well be reluctant to make an affirmative finding of exclusion but rather admit the evidence and assess weight (that is, the ultimate significance of the probative value) in the overall balancing of all the evidence, particularly when the assessment is made after the trial has concluded. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The repetition of acts or occurrences is often the very thing which makes it probable that they are accompanied by some further fact. The frequency with which a set of circumstances recurs or the regularity with which a course of conduct is pursued may exclude, as unreasonable, any other explanation or hypothesis than the truth of the fact to be proved. It is put forward as evidence of emerging hostility on the part of Mr Ramsey commencing with Union opposition to approval of the AWAs. Hostility is another name for an attitude of mind or a tendency towards a state of mind. The evidence is not evidence of a tendency on the part of Mr Ramsey to act or think in a particular way. Although the evidence is admissible on other grounds, it is not admissible as tendency evidence. It is evidence of a secondary fact, that is, the role or field of engagement by the Federal or State Union in the industrial affairs of the relevant Ramsey companies and their employees. The evidence suggests that those companies through Mr Ramsey embraced an attitude of mind towards the need to secure Australian workplace agreements with individuals divorced from award conditions. The evidence is admissible evidence of secondary facts and part of a narrative of industrial relations at the South Grafton Abattoir. 28 In October or November 1998, Mr Davis commenced proceedings in the AIRC and small claim proceedings under s.179 of the Act in the Newcastle Local (Industrial Magistrates) Court against the Third Respondent on behalf of Trevor Moss. Mr Davis generated correspondence in those matters in his position as Assistant Secretary, conducted the proceedings and served papers upon the Third Respondent. 29 In early 1999, Mr Davis commenced unfair dismissal proceedings in the AIRC on behalf of Mr Jason Robertson and participated in conciliation hearings on 22 March 1999 and 7 April 1999. Mr Davis caused witness statements (including a statement from Mr Paul McKenzie) to be sent on 23 June 1999 to the lawyers for the abattoir group of employers, Hannigans, the lawyers in the present proceeding. 30 In April 1999, Mr Davis commenced unfair dismissal proceedings on behalf of Mr Paul Swain and conducted the following proceedings. The matter was heard on 27 and 28 September 1999 by Commissioner Jones, a decision made awarding compensation on 24 December 1999, an appeal made to the Full Bench of the AIRC seeking reinstatement, remission of the matter to Senior Deputy President Drake, a reinstatement order made by S D P Drake and an application for leave to appeal by the employer. The application was dismissed. 31 In July 1999, Mr Davis commenced unfair dismissal proceedings on behalf of Mr Colin Hambly and conducted the following proceedings against the Third Respondent. An application was filed on 19 July 1999 before the AIRC. The matter was heard on 30 January 2000, a reinstatement order was made by Commissioner Wilks on 14 February 2000. An application for leave to appeal was lodged by the employer with the Full Bench of the AIRC which was dismissed consequent upon a hearing on 23 June 2000. 32 In September 1999, Mr Davis commenced unfair dismissal proceedings in the AIRC on behalf of Mr Stephen Blackadder conducted the following proceedings against the Third Respondent. On 29 March 2000, Commissioner Redmond made a reinstatement order in favour of Mr Blackadder. An application for leave to appeal by the Third Respondent was unsuccessful on 26 June 2000. The AMIEU provided legal representation for Blackadder in Federal Court proceedings between Blackadder and the Third Respondent (and in connection with appeals) in the Federal Court of Australia in connection with events the subject of Commissioner Redmond's determination. 33 In 1999, Mr Davis arranged for and sought to participate in safety inspections at the South Grafton Abattoir in conjunction with inspectors from WorkCover , sought to speak directly with Mr Ramsey, spoke with Ms Mortimer and Mr Marshall and was directed to leave the premises. Police were called to the site and Mr Davis and the WorkCover inspector were required to produce "authorities to enter industrial premises", to the police. A similar inspection occurred on 18 May 1999. 34 On 23 October 2000, Mr Davis formulated correspondence for Mr Moss to send to the office of the Employment Advocate in connection with aspects of his AWA. Mr Davis caused approximately 100 forms to be circulated seeking the appointment by employees of the AMIEU as a bargaining agent in connection with the AWAs (due to generally expire in April or early May 2001) for each employee and reproduced on the back of that form a response to Mr Moss's letter from the Employment Advocate which, through inadvertence, disclosed the name of Mr Moss. Mr Davis says that as the expiry date for the majority of the AWAs approached, he was a frequent visitor to the abattoir, met workers, Union delegates Delaforce and Moss, members of the consultative committees and Blackadder and Hambly. Delaforce, Moss and P F McKenzie circulated up to 100 notices of meeting. 37 As to paragraph 57, the last sentence pressed by the Applicant is relevant to the issue of the stock shortage. 39 The Respondents object to paragraphs 5, 6, 7 and 8 on the ground of relevance. Those paragraphs explain the events in paragraphs 9 and 10 which are not the subject of objection. The objection is not accepted. 40 As to paragraphs 12 and 13 challenged on the ground of relevance, paragraph 12 deposes to facts concerning the physical difficulty experienced by Mr Blackadder in rotating his right arm so as to perform a particular class of boning, namely, "hot neck boning". The paragraph seeks to establish a reason for refusing to do the work. The evidence is arguably relevant to demonstrating or excluding a reason for dismissal. The paragraphs are evidence of secondary facts. Paragraph 13 explains the tasks involved in performing hot neck boning. Both paragraphs are admissible. Similarly, the last sentence of paragraph 15 explains that the tasks attract less remuneration which partly aids the evidence of the character of the tasks. As to paragraph 37, the name of the employer endorsed on Mr Blackadder's payslips is relevant to the identity of his employer. The Respondents object to paragraphs 7 to 68 on the ground of relevance. Paragraphs 24, 25, 38, 39, 40, 44 and 47 are not pressed. Paragraphs 7, 8, 9 and 10 depose to discussions between employer representatives Mr Paul Marshall and Mr Stuart Ramsey and Delaforce in May, June and July 1999 concerning the employer's practice of averaging "overs" and the operation at that time of the "tally system" which was said by Delaforce to be unfair. Those matters are relevant to facts in issue concerning Delaforce's dissatisfaction with working conditions. The objection is not accepted. 42 Paragraphs 11 and 12 are supported by the Applicant on the ground of "tendency evidence". The evidence is that on 13 August 1999, Delaforce was told by abattoir management to undertake "hot neck boning" for an indefinite period. Delaforce had a conversation with Mr Ramsey and was told that he had been sent hot neck boning because he had complained about doing more work than other boners yet had been paid the same amount of pay. Delaforce says Ramsey told him he would be doing hot neck boning "all the time". The evidence is relevant to the question of whether Mr Ramsey, confronted with a complaint from an employee concerning conditions, exercised a power to assign a complaining employee to unpleasant tasks to discourage complaint from either that employee or employees generally. The evidence is evidence of a secondary fact from which inferences might be drawn having regard to all of the evidence. 43 Paragraphs 13, 14 and 15 depose to contextual facts concerning Mr Delaforce's duties and Mr Delaforce's participation in AIRC proceedings commenced by Blackadder against the Third Respondent and are relevant. 44 Paragraph 16 is pressed by the Applicant on the ground of tendency evidence. Paragraph 16 deposes to statements made by Mr Ramsey at a meeting of abattoir workers in the lunchroom of the abattoir on 15 February 2001. A typewritten transcript of the comments is annexed marked "AJD-3". Mr Delaforce says he has an independent recollection of the meeting and Mr Ramsey's statements. Mr Delaforce says he made a tape-recording of what Mr Ramsey said at the meeting. The transcript reveals a number of strident and forthright expressions of opinion by Mr Ramsey about the role and utility of the AMIEU in contributing to an efficient workforce. The question in issue is whether the relevant Respondent engaged in conduct for the reason that particular employees were members of the Union (and in some cases a delegate of the Union) and that particular employees had expressed dissatisfaction with employment conditions at the abattoir consistent with a position taken by the Union to agitate for improved working conditions generally. Strong expressions of anti-Union feeling and hostility towards the Union and Union representatives are relevant to the questions in issue. "I've been waiting for this bloody slime-bag [Davis] to come back ... he always slimes back when he knows I'm in Casino on Wednesday and apparently came in here under the workers' safety thing". "As usual he lied, didn't keep any ethics, because he didn't really come for that as everyone knows, he came to hand out union forms". "Now that's alright, I don't care who signed them it doesn't matter, but if you want to negotiate with us and have some meaningful negotiations, the greater would be advised not to be a member of the union". (d) "The union I'd say ... anyone that's wanted to come and talk to us has talked to us, we've talked to them. I've had a couple of witnesses with one arsehole. But that sorted him. I think everyone knows who that is, because he just lies. That's his problem. And he's causing you blokes a fair bit of trouble. Now that fella's come in here yesterday under a reported workers' safety issue. He come in with arsehole and try and get blokes as members. No need for you blokes to be members. It'll be a lot bloody fairer if we get rid of those three or four fellas I can tell you. But someone's got to pay for it and it's not going to be Stuart any longer. You don't want some d'head down there telling us what to do and rooting us. You've only got to look at the number of abattoirs which have been closed since we opened. Every single one of them under that slime-bag union every single one of them. So if you want to go that way it doesn't worry me. When the place doesn't become viable, I'll bloody close and you people will be paid your entitlements. Then I'll have to put off the workers and you wouldn't have a f---g job and that's what you blokes want to remember. We've had a bloody good association here with 98% of the fellas. There's a few arseholes that like squirming around ... and lying to ... but everyone knows who they are and I hope they feel uncomfortable and piss off. Accordingly, the evidence is admissible. 47 Paragraphs 17 to 21 form part of a narrative and are admissible. 48 Paragraph 22 is supported on the ground of tendency evidence. The paragraph restates the effect of the statements made at the meeting on 15 February 2001 for which a transcript is exhibited and refers to "several occasions" at which Mr Delaforce was present when Mr Ramsey said words to the effect "there's no need to get the Union involved. We can do things together between employer and employees". These statements are less strident and lack specificity in the sense that no attempt has been made by the deponent to identify the date, time, place or other details of the statements. Accordingly, I am not satisfied that paragraph 22 has significant probative value. 49 Paragraph 23 goes to the question of dissatisfaction with conditions as do paragraphs 26 to 37. I accept that paragraphs 39 and 40 are contextually relevant to the narrative of events and paragraphs 41 to 45 are relevant to dissatisfaction with conditions. So too is paragraph 48. Paragraph 49 forms part of the narrative. Paragraph 50 is pressed on the ground of tendency. The evidence goes to a meeting held on Friday, 15 February 2002, called by Mr Stuart Ramsey at approximately 3.00pm between abattoir management and employee consultative committee members. Attendees were Morrow, Mortimer, Ramsey, Delaforce, Moss, Bryan Weier, Robert Colling, Steve Beetson, John Broadrick and Paul Marshall. The note of the meeting (AJD-10) notes that Mr Ramsey said he was upset at the fact that the application before the AIRC by the abattoir companies had been opposed. The committee considered the employees should go back to the award. Mr Ramsey said the employees could have their notice now if they went back on the award as the company could not continue. Committee members complained that the men were being paid less than the award. Mr Ramsey said the "company will not be dealing with Mr Davis". Mr Ramsey said that if the abattoir went back on the award, the abattoir would be finished. Mr Delaforce raised questions about working conditions and payments if the Union agreed not to oppose certification of the workplace agreements. I propose to admit the paragraph as evidence of tendency. I accept that paragraphs 51 to 68 of Mr Delaforce's affidavit are relevant to dissatisfaction with working conditions and form part of the narrative. I accept that paragraphs 2 to 9 form part of the contextual narrative and I propose to admit paragraph 5 on the ground of tendency evidence. I accept that paragraphs 7 and 8 form part of the contextual narrative. Paragraph 9 is relevant to dissatisfaction by Forrest with his conditions as are paragraphs 10 to 29. I propose to admit the paragraphs on the ground of tendency evidence. Paragraph 6 forms part of the contextual narrative. Paragraphs 7 and 8 are not pressed. Paragraph 9 is pressed on the ground of tendency. It deposes to statements by Mr Ramsey saying that "occupational health and safety issues [are] all bullshit and a waste of time. You're better off cutting up meat and I would be better off out buying meat". The evidence may be relevant to the question of whether compliance with regulatory requirements and safety standards applicable to a workplace and therefore forming part of working conditions are features of the employment relationship of Mr Ramsey would prefer to ignore (that is, regards as "bullshit") and therefore relevant to the question of dissatisfaction with working conditions. Paragraphs 10, 11, 12 and 14 form part of the narrative. Paragraph 16 is supported on the ground of tendency and exhibits a letter (CJH-3) from Ramsey Butchering Services Pty Ltd to Hambly. I propose to admit the evidence. 53 Paragraphs 17 to 19 are supported on the ground of tendency. I propose to admit those paragraphs going to the tendency of Mr Ramsey to discourage expressions of concern about working conditions. Paragraphs 19, 20, 21 and 22 go to the contextual narrative as does paragraph 23 apart from the first sentence. Similarly, paragraphs 27 to 34 go to the contextual narrative of events. Paragraph 42 deposes to the assertion that Hambly has never been offered work by the abattoir since his dismissal on 1 July 1999 and is admissible evidence of the absence of an offer notwithstanding his allegations of attempts to seek employment. By paragraph 5, McKenzie says he did not consent to a change in his employer from the Third Respondent to the First Respondent. McKenzie is entitled to give admissible evidence of whether he gave consent. A question of law might arise as to whether other facts occurred which give rise to another conclusion. Paragraph 7 deposes to statements made by Mr Ramsey. The paragraph is admitted on the ground of tendency. Paragraphs 10 to 15 form part of the contextual narrative. Paragraph 16 deposes to the proposed introduction of a bonus system and a meeting of all employees of the abattoir in April 2002 at which Mr Ramsey said "I am introducing a new bonus system" and "you can either like it or lump it". I propose to admit the paragraph, taken in conjunction with other evidence of the activity of the AMIEU and Mr Davis on the ground of tendency to demonstrate an attitude of mind that an employee dissatisfied with conditions might be confronted with dismissal. Paragraphs 17 to 20 deal with dissatisfaction with conditions. Those paragraphs are admissible. Paragraphs 21 to 27 deal with the contextual narrative and paragraph 32 (apart from the second sentence) deals with opportunities for employment available to McKenzie. Issues concerning paragraphs 41, 42 and 43 are resolved. Paragraph 44 addresses facts relevant to the allegation of refusal to employ McKenzie. Paragraph 7 forms part of the narrative. Paragraph 8 is admissible on the ground of tendency to establish a state of mind of hostility towards the Union and particular Union officials. Paragraph 11 is part of the contextual narrative. Paragraph 12 is admissible on the ground of tendency. Paragraph 13 is admissible on the ground of tendency and Mr Ramsey's knowledge of Union participation on behalf of abattoir workers. Paragraph 14 is admissible as relevant to dissatisfaction with working conditions. Paragraph 15 is relevant to dissatisfaction with conditions. Paragraphs 16 to 19 are admissible as to tendency or hostility towards the Union. Paragraphs 20 to 27 are admissible as part of a narrative and knowledge of Union membership at the abattoir. Paragraph 28 is admissible as to tendency towards hostility towards the Union. Paragraph 29 is admissible as to tendency. Paragraphs 32 to 35 go to dissatisfaction with working conditions. Paragraph 40 is admissible as to tendency. Paragraphs 42 to 44 form part of the narrative. Paragraphs 45, 46, 47, 49, 51 are admissible as to dissatisfaction with conditions. Paragraphs 52 to 56 form part of the contextual narrative. Paragraphs 57 to 62 are relevant to dissatisfaction with conditions as are paragraphs 63 and 64. Paragraphs 84 and 85 form part of the contextual narrative. Paragraphs 87, 88, 89, 90, 91 and 92 (apart from the third sentence) form part of the contextual narrative. The affidavit sworn 25 August 2004 is Exhibit 15. Paragraph 5 goes to the alleged change in the employment arrangements and is admissible. Paragraph 6 is admissible as to dissatisfaction with conditions. Paragraph 7 forms part of the narrative. Paragraph 8 is not admissible as to tendency. Paragraphs 9 to 12 form part of the narrative. Paragraph 13 is admissible as to tendency. Paragraph 14 is admissible as to the contextual narrative. Paragraphs 16 and 17 are admissible as to a tendency towards hostility to the Union and Union officials. Paragraph 18 is admissible as to the narrative and events concerning knowledge of Union membership. Paragraph 19 is admissible as to dissatisfaction with conditions and as to tendency. Paragraph 21 is admissible as to tendency. Paragraph 23 is admissible as to dissatisfaction with conditions. Paragraph 24 performs part of the contextual narrative. Paragraph 25 is not admissible as to tendency. Paragraph 26 forms part of the narrative. Paragraphs 29 and 30 are admissible as to tendency. Paragraph 32 forms part of the narrative. Paragraph 33 is admissible as to knowledge of Union membership. Paragraphs 34 and 35 form part of the contextual narrative. Paragraphs 36 and 37 are admissible as to dissatisfaction with conditions. Paragraph 38 forms part of the narrative. Paragraphs 39 and 40 are admissible as to dissatisfaction with conditions. Paragraphs 41 and 42 form part of the narrative. Paragraph 43 goes to dissatisfaction with conditions. Paragraph 45 is admissible in fixing the time of the meeting by reference to the AIRC hearing. The affidavit of Terrance Brooks sworn 20 August 2004 is Exhibit 7. Paragraph 7 is relevant to the deponent's dissatisfaction with conditions. Paragraphs 8 and 9 are admissible as to tendency evidence. Paragraph 11 forms part of the narrative. Paragraphs 16 and 25 are not pressed. The second last sentence of paragraph 35 is admissible as to fixing the moment in time of the event. Paragraphs 41 and 43 (to the extent not conceded by the Applicant) is relevant to the contention of a refusal to employ Brooks and the question of compensation payable for Brooks in the event a contravention is established. As to paragraph 3, Campbell gives direct admissible evidence from his experience. Paragraph 5 is not pressed. Paragraph 6 is admissible evidence as to whether Campbell gave his consent to any change in his employment relationship. Paragraphs 8, 9, 10 and 11 are all supported on the ground of tendency. By itself, those paragraphs are not admissible as to tendency but taken in conjunction with the affidavits at large and the affidavit, in particular, of Delaforce, the paragraphs are admissible as to tendency. The challenged part of paragraph 18 is not pressed. Paragraph 19 taken together with all the evidence is admissible as to tendency and goes to dissatisfaction with conditions. Paragraphs 20 and 21 are admissible as to tendency. The challenged part of paragraph 33 is not pressed. Paragraph 4 is direct evidence of the work Swain says he performed. As to paragraph 24, the first sentence is not pressed but the remaining sentences are relevant to the question of the issue of refusal to employ. Paragraph 29 is not pressed. Paragraph 3 is an explanation of the commencement of employment and forms part of the narrative. Paragraph 6 deposes to Young's membership of the AMIEU. Paragraphs 7, 8, 9 and 10 deal with conditions, issues surrounding conditions and dissatisfaction with conditions. Paragraphs 11 and 12 form part of the contextual narrative. Paragraph 13 is not pressed. Paragraph 14 deposes to meetings of workers informed of considerations within the first consultative committee of some aspects of working conditions. Paragraphs 15 and 16 form part of the narrative. Paragraph 17 deposes to facts relevant to dissatisfaction with conditions. Paragraphs 18 and 19 form part of the contextual narrative. Paragraph 20 goes to dissatisfaction with conditions, knowledge of Union membership and, in conjunction with all of the evidence, tendency. Paragraphs 21, 22 and 23 form part of the narrative. Paragraphs 24 and 25 go to dissatisfaction of conditions. Paragraphs 26 and 31 are not pressed. The parts of paragraph 35 to which objection is taken are not pressed. Paragraphs 38 and 39 go to the issue of refusal to employ and compensation. Paragraph 6 goes to the employment relationship. Paragraphs 12 to 22 are admissible as to dissatisfaction with working conditions. Paragraphs 34 and 35 are not pressed. No objections are raised to this affidavit. That sentence exhibits a handwritten note of the deponent of a conversation with Ms Renee Mortimer deposed to in paragraph 4. The note is relevant to the matters deposed to in paragraph 4 and is admissible. No objections are raised in relation to this affidavit.

consideration of conduct of dismissal of employees and refusal to employ persons at the south grafton abattoir consideration of part xa, divisions 2 and 3 ss 298k(1)(a) and (d) and prohibited purposes of membership of an industrial association, entitlements to the benefit of orders of the airc, participation in proceedings before the airc as a party and by giving evidence the expression of dissatisfaction of working conditions in the context of an industrial association seeking better conditions consideration of the circumstances required to be satisfied before a statutory presumption of a prohibited purpose arises for the purposes of s 298v. consideration of the approach to be adopted in dealing with a 'no case to answer' submission and whether a respondent ought to be put to an election as a condition of making the submission consideration of the basis upon which submission made and the relationship between the grounds advanced by the moving party and the need for an election. consideration of the utility of the report of an expert and the extent to which the report failed to meet the standards required by the guidelines for expert witnesses in proceedings in the federal court of australia issued by the chief justice on 19 march 2004 consideration of the extent to which the report might be characterised as a piece of advocacy for a party. consideration of the principles governing the reception of tendency evidence both generally and for the purposes of s 97 of the evidence act 1995 (cth) consideration of the circumstances in which inferences might be drawn from secondary facts in order to establish the fact in issue. industrial law practice and procedure evidence evidence

It involves the vexed and difficult area of law introduced in the Migration Act 1958 (Cth) by s 359A and its cognate provision s 424A as to what information was given by an applicant for review to the tribunal charged with the review of the administrative decision made by the Minister or his or her delegate. 2 In this case the decision-maker was the Migration Review Tribunal and the provisions of Pt 5 of Div 5 of the Act govern the manner in which it arrived at its decision. 3 Mr Goo applied for a subclass 457 visa by seeking to come within the category in cl 457.223(8) of the Migration Regulations 1994 (Cth). He came to Australia in December 2000 with his wife and son, each of whom was, in effect, included as his dependants on the visa application. Mr Goo registered a business name, DSP Australia, of which he was the sole proprietor. Dongsung was involved in the production of equipment. Mr Goo sought to bring himself within the service seller visa requirements by establishing that he was a representative of Dongsung in Australia. He proposed to represent it here. He claimed that his activities here would involve negotiating or entering into agreements for the sale of Dongsung's services but would not themselves involve the actual supply or direct sale of those services. 5 After a delegate of the Minister refused his application he sought review of that decision in the Tribunal. The Tribunal had the Department's file before it and in the course of its reasons set out at some length what material Mr Goo had put before the delegate in support of his initial application, even though Mr Goo had not, himself, put that very material to the Tribunal. 6 One of the items which the tribunal recorded as having been put to the delegate in support of the original application was a print out (created on 4 September 2002) of the website of DSP and which identified Mr Goo as the production manager. It gave an address of DSP in Granville, New South Wales. Another item that was before the delegate and referred to by the Tribunal as such was a pithy sole agency agreement dated 10 April 2002 between Dongsung and DSP. Neither of those two documents was given by Mr Goo to the Tribunal for the purpose of his application within the meaning of s 359A(4)(b) as interpreted by the authorities culminating in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. So much is common ground. 7 Mr Goo's then migration agent wrote to the tribunal on 2 May 2005 enclosing, among other things, a service seller agreement dated 26 August 2003 between Dongsung and Mr Goo. Among other things, that contained an entire agreement clause specifically providing for contents of the service seller agreement to supersede any and all prior agreements or understandings between those parties. Also included in the material supplied with the letter of 2 May 2005 to the tribunal was another copy of the printout of the DSP website created on 2 May 2005 which again showed Mr Goo as the production manager. That printout gave an address for DSP's business at Riverstone in New South Wales. 8 It is clear that the printout of the website before the delegate was of a different document and it contained different information from that which was provided to the Tribunal by Mr Goo in the letter of 2 May 2005. This distinction, if it had a difference, is said to be critical to the outcome of the appeal. 9 The Tribunal's findings and reasons section of its decision set out, among other things, what had been put by Mr Goo to the delegate in support of his visa application and which was not provided to the Tribunal by Mr Goo for the purposes of the review. A submission dated 2 May 2005 indicated that [DSP] assisted in performing negotiations for the sale of services, entered into agreements, after sales services and routine maintenance on behalf of [Dongsung]. At the hearing the visa applicant stated amongst other things that he managed the business DSP Australia. Products were shipped from Korea to the business which did further work on, and checked, the products and then the business sold the products. The visa applicant stated that he received his income from the Korean company: that company had shipped equipment to Australia and DSP Australia sold the products and he received his income from the sales. Available evidence shows that the visa applicant has set up a business called DSP Australia in Sydney. The visa applicant has been described as a Production Manager for that business. The business takes orders in Australia, products from Korea are shipped to DSP Australia which does further work or tests on them in a factory, and then sells them to Australian businesses. The visa applicant takes his income from DSP Australia. The Tribunal finds that the visa applicant is involved in the actual supply, or direct sale, of the services. Given the findings made above, the Tribunal has no alternative but to affirm the decisions under review. • The sole agency agreement dated 10 April 2002. Mr Goo argued that the source of the description must have been taken by the Tribunal from the material which was given to the delegate for the purposes of the original decision the subject of the review and that because he was not given particulars in writing under s 359A(1), that that document, or that the information in that document, was to be used as the reason or part of the reason of the Tribunal, he had not been accorded procedural fairness in accordance with Pt 5 Div 5 of the Act. 13 Mr Goo's argument is that had the tribunal had regard to and used as the reason or part of the reason the description of Mr Goo as production manager in the printout provided as part of the submission of 2 May 2005, it would have said so. In SZEEU 150 FCR at 255 [178]-[180] Weinberg J discussed the highly refined and extraordinarily sophisticated reasoning which the analogue of s 359A (s 424A) has engendered. To say that this legislation has created a technical minefield not only for tribunals but for applicants is an understatement. However, it is the role of the Court to apply the law, not to comment on the wisdom of its provisions. 14 Weinberg J indicated that the source of information may be critical to determining whether or not a notice in writing needs to be given for the purposes of the analogue of s 359A. And, he identified some odd results that can flow. Mr Goo in particular relies upon his Honour's discussion of the possible use of information given to the delegate in support of a visa applicant's case which is affirmed by the applicant for review at the hearing before the tribunal. In the example that his Honour gave (150 FCR at 255 [179]), the applicant for review repeated or adopted what he or she had said to the delegate in the course of giving evidence to the Tribunal. If the Tribunal chose the original statement, as opposed to its reaffirmation in the evidence before it, as the reason or part of the reason for its conclusion of disbelieve or lack of credibility on the basis of inconsistency between that information and some other information before it, different results would follow. As can be seen from the appeal in SZEEZ , if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy: see generally SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 per Bennett J. This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the " reason ", or "a part of the reason " for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1). the website printout of 4 September 2002) as the reason or part of the reason for affirming the decision of the delegate. He says that because the Tribunal did not set out in its reasons, in terms, the same description, albeit in a different document (i.e. the website printout of 2 May 2005) with some other different information it must have relied on the 'information' before the delegate. 16 Mr Goo says that the Tribunal was under a duty under s 368(1)(d) of the Act to refer to the evidence or any other material on which its findings of fact were based and the omission to refer to the printout of the website enclosed with the letter of 2 May 2005 demonstrated that it was the earlier printout which was the information upon which the Tribunal proceeded. 17 I posed the question during argument as to what a hypothetical notice under s 359A would have contained. They noted that a court should not be concerned with looseness in the language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons, they said, for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. They cited an earlier decision of the Full Court of this Court: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. 19 Brennan CJ, Toohey, McHugh and Gummow JJ also said that this was a well-settled proposition which recognised that in reality the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. Their Honours warned against the Court, on judicial review, turning the process into a review on the merits of the decision. 20 More recently in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 at 598 [25] , Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that what is required by procedural fairness is a fair hearing, not a fair outcome and that it was not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question was about whether the Tribunal's processes, not its actual decision, were in accordance with law. 21 Here, there is not the slightest doubt that Mr Goo gave to the Tribunal for the purpose of his application for review the information in the website printout of 2 May 2005. It said that he was the production manager of DSP. That information was congruent with and identical to the information in the website printout of 4 September 2002, albeit that the two printouts contained other information which was different. 22 The critical information to which the Tribunal had regard was Mr Goo's self-description as a production manager. Unlike the situation discussed by Weinberg J in SZEEU 150 FCR at 255 [178]-[180], there is no question here of any inconsistency in information which Mr Goo was providing as to his status of production manager. The Tribunal referred in its reasons to 'available evidence' as showing Mr Goo as production manager of DSP. It did not have to set out the source of every repetition of that evidence. I am of opinion that it would expose the Tribunal's reasons to an overzealous review to conclude that the reason or part of the reason for its decision was specifically that contained in the source of the description 'production manger' which was before the delegate. There is no reason to think that the Tribunal did not also read and consider the submission given to it on 2 May 2005 in which the same information, patently uncontroversial in the instant case, was provided to it by Mr Goo for the purposes of the review. 23 I am of opinion that the Tribunal did not have to set out every reference in the material before it to a source for that description, which was uncontroversial and was a self-description. It is not suggested to be in any way inaccurate. What Weinberg J was addressing in SZEEU at 150 FCR at 255 [179] was a situation in which the Tribunal was using information given variously at an earlier occasion and later to it as a basis for not accepting that information or not accepting other information from Mr Goo that was relevant to that information. 24 Here, the source of the description 'production manager' was on each occasion Mr Goo's provision of the material in the website printout, first, to the delegate and second, to the Tribunal. There was no inconsistency between that material. Mr Goo intended that the Tribunal act on the information he provided, including the website printout of 2 May 2005, and because of the operation of s 359A(4)(b)that was information which the Tribunal did not have to give back to him. 25 There was no part of the reasoning of the Tribunal which relied upon any distinction between the times at which that same information was provided to the delegate or to the Tribunal. A fair reading of [20] of the Tribunal's reasons indicates that it had regard to the overall position of DSP including that it was a business name he owned and Mr Goo's relationship with Dongsung. 26 For these reasons I am of the opinion that there is no jurisdictional error made out and there was no need for Mr Goo to be sent a notice under s 359A(1) in respect of his self-description as production manager on the website. 27 The second basis upon which Mr Goo argued that the appeal ought to be allowed was the reference to the sole agency agreement which was before the delegate but not put before the Tribunal by him. I am unable to ascertain any part of the reasoning of the Tribunal which employed the sole agency agreement as a reason or part of the reason for affirming the decision that was under review. The mere fact that the Tribunal in the course of its reasons referred to that sole agency agreement does not mean that it had the causative operation which s 359A requires as being necessary before an obligation to give a notice under it is enlivened. 28 For these reasons I do not consider that there is any jurisdictional error in what the Tribunal did in merely setting out that the sole agency agreement was before the delegate and that it had looked at it in the course of conducting its review. 29 During the course of argument I raised a matter that was of concern to me. That was that the Tribunal had indicated that in reaching its decision on Mr Goo's case it had had regard to policy considerations which it had set out earlier in its reasons. The policy considerations ascribed an operation to cll 457.223(8) and (5) which did not appear to me, without the benefit of any argument or evidence, to be capable of any support in those regulations and appeared to reveal a misconstruction of what that clause provided. 30 I raised with counsel that it was troubling that, if my untutored impression were correct, this decision, and maybe others, had been made on the basis of a policy that was contrary to the delegated legislation in the regulations and therefore would produce results which were not only unfair but could be unlawful. Because this point was not raised before his Honour or in any notice of appeal, I declined to allow Mr Goo to raise it now, for, indeed, it may not be one which on examination is correct. If it is correct, this would obviously be an appropriate case for the Minister to exercise his powers to reconsider the matter in accordance with law. However, my function is to determine the appeal. 31 I am of opinion that the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares .

the operation of s 359a of the migration act 1958 (cth) circumstances under which notice must be given to an applicant for review of the particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review what constitutes 'the reason' or 'a part of the reason' for the tribunal's decision migration

The central matter is that the appellant is a male citizen of Bangladesh who claims to fear persecution and thus a well-founded fear of persecution for a Convention reason because he was and is a homosexual. Thus, the appellant contends that he is the subject of persecution by reason of his membership of a social class. 2 The Tribunal referred to country information in relation to discrimination but ultimately the Tribunal did not accept that the appellant personally was a homosexual, for a number of reasons described by the Tribunal and I will turn to those in more detail in a moment. The appellant sought judicial review of the decision of the Tribunal by an application filed in the Federal Magistrates Court which ultimately, after the invoking of unrepresented parties' procedures, resulted in an amended application filed on 7 May 2007. That application recited a number of grounds exhaustively reviewed by Lloyd-Jones FM and I will turn to those matters shortly. 3 The appellant challenges the decision of the Federal Magistrates Court by a Notice of Appeal filed on 13 February 2008 and in that appeal the appellant relies upon three grounds which are prefaced by an introductory statement which contains a number of assertions which for present purposes I will treat as grounds. In the Notice of Appeal at AB39, the appellant contends that the primary judge committed an error of law in dismissing the application before him in failing to recognise jurisdictional error on the part of the Tribunal arising out of an incorrect interpretation of the applicable law to the facts. 4 The second proposition in the introductory paragraph is that the primary judge fell into error by not recognising that the Tribunal decision involved an improper exercise of the power conferred by the Migration Act 1958 (Cth) and the regulations under that Act. The third contended error of the primary judge is that there was no evidence or other material to justify the making of the decision. Each of these matters seem to be omnibus statements of position at a reasonably high level of abstraction and none of these assertions are supported by any particulars, unless the proper construction of the Notice of Appeal is that grounds 1, 2, 3 and 4 are said to be the expression of those propositions. 5 The first formal ground of appeal is that the Tribunal "constructively failed to exercise its jurisdiction under the Act, in that it failed to follow proper procedures as required by the Act". It is said by the appellant that the Tribunal did not observe the processes required by the Act. The second ground is that the delegate of the Minister fell into jurisdictional error by approaching factual matters concerning the division of homosexuals into particular groups in a particular way, that is to say, discreet and non-discreet groups. The third ground is that the Tribunal did not consider the prevailing situation in Bangladesh concerning the treatment of homosexuals and the eligibility of homosexuals to refugee status based upon persecution as a member of a particular social group. 6 The fourth ground of appeal is that by reason of the recent direction made under 353A and s 420A of the Migration Act by which guidance is given to decision makers in the conduct of hearings, the Tribunal failed to comply with the guidance document. The most immediate difficulty with ground 4, of course, is that the guidance document is one relating to the implementation of the Migration Amendment (Review Provisions) Act 2007 which on its face applies to applications made, relevantly in this case, to the Tribunal on or after 29 June 2007, whereas of course, the application to the Tribunal in respect of the delegate's rejection of the applicant's application was made on 4 September 2006 and received at the Tribunal on 5 September 2006. Thus, the guidance instrument does not apply to the conduct of proceedings. 7 In any event, it should be noted, of course, that the guidance document seeks to express a number of principles which are relevantly captured by the legislation in terms of the requirement to conduct hearings in a fair way. I will return to that in a moment. This morning, the appellant, who is unrepresented but assisted by an interpreter, has made a number of submissions about ground 1 of the notice of appeal at my invitation. I sought further information from the appellant as to the precise complaint made about the Tribunal's conduct of the hearing and the failure to afford proper procedures. The particular complaint is that the hearing was a long hearing. 8 The appellant was suffering some degree of mental stress about matters and during the course of the hearing the Tribunal pressed the appellant repetitively, it is said, about a particular question. That question went to the circumstances in which the appellant's relationship with his partner was initially discovered which goes to a factual controversy as to whether or not a particular act of sexual engagement was discovered by the appellant's uncle at the appellant's house or whether the engagement act was discovered by the appellant's partner's father at the appellant's partner's father's house. 9 The second matter went to questions addressed by the Tribunal to the appellant about the circumstances and activities of the appellant's brother. By way of initial observations, of course, it should be noted that the question of the scope and nature of the relationship between the appellant's partner and the circumstances in which the homosexual relationship was discovered were central factual matters of debate before the Tribunal and central to the appellant's application for a Protection Visa, as it reflected upon the dislocation within the appellant's family and the appellant's partner's family, thus resulting in harassment and persecution because of the socially unacceptable nature of that relationship having regard to central religious beliefs about such relationships. 10 Because the appellant relies upon the dislocation of the two families and the consequential harassment by members of those families, the approach and conduct of the appellant's brother to the appellant, and for that matter to the appellant's partner, was something naturally within the factual matrix to be considered by the Tribunal in the exercise of its fact finding analysis. The appellant, as I have indicated, is unrepresented and has no written submissions and has not been able to formulate any structured oral observations in support of the grounds. It seems to me, therefore, that the underlying obligation of the court, notwithstanding the inadequacy of those matters, is to test whether there is, in fact, any appealable error which, in the interests of justice, ought to be identified rather than overlooked if it subsists any discernable error ought not be overlooked simply by reason of the fact that the appellant is not capable of either identifying or articulating the nature of that error. 11 The central matter seems to me having reviewed all of these papers closely to be that the appellant contends the Tribunal did not properly have regard to all of the circumstances the appellant put to the Tribunal and did not examine closely the basis for persecution by reason of the homosexual relationship and did not examine closely the prevailing circumstances within Bangladesh as to such relationships. I should say at the outset that having closely reviewed the reasons of Lloyd-Jones FM, I am not satisfied that there is any error on the part of the Federal Magistrate in the analysis of the various matters which his Honour framed in responding to and dealing with each of the grounds of review in the amended application before the court below, filed on 7 May and contained in the Appeal Book, pp 11, 12, 13 and 14 particularly. 12 Having said that it seems to me to be important to reflect briefly what was put to the Tribunal and the way the Tribunal dealt with those matters, simply for the purpose of informing whether there is any error on the part of the Federal Magistrate in the court below. As to that matter, the Appeal Book contains a letter lodged with the Department by the appellant's representative, that is, the migration agent, on 5 June 2006, which contains a statement of certain matters. It also contains a statement by the appellant. I should mention briefly some of these things. 13 The appellant said that he is a national of Bangladesh by birth, and from early times adopted a homosexual lifestyle. 14 He arrived in Australia on 27 April 2006, he says, to escape persecution in Bangladesh where he had been facing serious mistreatment, hatred and discrimination, including life threats for the practice of his homosexual lifestyle. He says that when studying at the Kazi Zafir High School, he developed a relationship with a high school colleague, which ultimately translated in to a homosexual relationship. The appellant points out that such relationships are forbidden and against the law in Bangladesh which is predominantly a Muslim country. He says that the penalty for such an offence is either life imprisonment or being stoned to death. 15 He says that unfortunately his uncle caught him with his high school college "red-handed while having sex in our house and instantly beaten us badly and also spoken to our parents and other members of our family about our relationship. " He says that the revelation of the relationship resulted in harassment, hatred and boycott activity by his parents and from the family of his partner. The appellant says that he was under pressure to end the relationship but when his father found out that he was maintaining a relationship, close family members planned together to organise a marriage with a girl of their choice to try and drive the appellant away from his predisposition with his partner. 16 The statement goes on to talk about aspects of that inter-family activity and the efforts to discourage the appellant from engaging in the relationship. The statement talks about his realisation that he had a brother in Saipan, who had been living there for many years and it might be sensible for the appellant and his partner to go to Saipan. Saipan, I should say is the capital of the United States Commonwealth of Northern Mariana Islands in the Pacific Ocean. Some discontent arose out of applications for visas and when it became apparent that the appellant was seeking two visas, both for himself and his partner, it became very difficult indeed and the appellant's brother was instructed to obtain a single visa for the appellant only. 17 The appellant's brother organised a visa which was granted in February 1997 and the appellant left Bangladesh in March 1997 thus breaking in a sense the relationship with the former partner. Events took an unfortunate and distressing course in 1998 when the appellant discovered that the appellant's former partner had taken his own life. The appellant in Saipan established a relationship with a Phillippino man and after the appellant's partner's death in Bangladesh the appellant established a close relationship with that man. The appellant arrived in Australia on 27 April 2006. He says in his statement that he could not feel safe in his family home in Bangladesh. He says that by reason of his partner taking his own life, his partner's family members were extremely distressed and threatened to kill him in 'vindication of their son's death', as he puts it in his statement. 18 He says that he simply had to leave Bangladesh and remained in a hotel in Dhaka and then return to Saipan and has not been to Bangladesh since. Those matters were put to the Minister's delegate in support of the application and on 18 August 2006 the delegate of the Minister wrote a letter to the appellant advising that the application had been rejected as the delegate was not satisfied that Australia owed protection obligations to the appellant in the circumstances. The appellant on 4 September 2006 wrote a letter through a migration agent to the Tribunal in support of his review application. That submission is set out at AB115 to AB119. 19 On 18 September 2006 the Tribunal wrote to the appellant advising that a hearing would be conducted on 24 October 2006 and the appellant indicated that he would attend that hearing, as he did, supported by a migration agent. On 26 October 2006 the Tribunal wrote a letter to the appellant putting to the appellant some matters upon which the appellant might comment as those matters might form part of the reason for the Tribunal's decision. That evidence was very different to the evidence you gave in writing to the Department about those circumstances. At the hearing you said that in 1992 (your partner) invited you to visit him because his family members were out, and you did, and variously his family, or his father, arrived unexpectedly and caught you having sexual intercourse. However in your statement to the Department you wrote that it was your own uncle who caught you. That this was at your family home and that your uncle told the family about it, making them aware of it for the first time. This inconsistency is relevant to your application because it casts doubt on the plausibility of your claim to have been discovered in this situation at all. And so casts doubt on your claim to fear an ex-partner's family. Further the Tribunal could infer, from this inconsistency, which relates to the key incident from which you claim all your subsequent problems flowed, that your claims are not generally credible. And also whether the incident was discovered by the applicant's uncle, or by the applicant's partner's father in their family home some time in the year 1992. Please find the enclosed self-declared statement written and signed by the applicant in his own handwriting, in the form of an affidavit in this respect, in which he explained where the sexual intercourse incident between the applicant and his partner has taken place, and how it was discovered. Whereas actually, the sexual intercourse between the applicant and his partner took place in the applicant's house and was discovered by the applicant's uncle and ever since the relationship secrecy with his partner was disclosed and also the applicant confirmed that similar statement was previously given to the Department of Immigration by the applicant at the time of lodging his protection visa application. However, the applicant also apologised for giving his contradictory statement to the RRT hearing on this particular incident, although that particular incident took place around 12 years ago. Besides, I submit, apart from the oral submission that I have made during the hearing on 24 October 2006 that it was a matter of getting mixed up with information of a particular incident that was taken place 12 years ago and therefore I would like to urge the honourable RRT to take a lenient view of this particular error of statement. 23 So that material represented the explanation. The reasons of the Tribunal are contained in the Appeal Book a pp 155 to 171. In the course of the reasons, the Tribunal explains the background claims, the appearance of the appellant assisted by his migration agent and an interpreter before the Tribunal on 24 October 2006 and then sets out the process of questioning in relation to the various matters I have recited, derived from the statement made in support of the application to the Minister's delegate. 24 Those questions included questions about the appellant's partner in Bangladesh; the relationship with that particular person; the response of the families to the relationship once it was discovered; the circumstances surrounding the discovery of the act of sexual engagement between the appellant and his partner; the scope and nature of the appellant's sexual orientation; the circumstances in Bangladesh in relation to such relationships; the appellant's brother's position in Saipan; the relationship that the appellant formed with a Pilipino gentleman in Saipan; the nature of any contact between the appellant and his former partner; the question of whether the appellant had travelled to any country other than Saipan; whether the appellant had a partner in Australia; and aspects of why the appellant could not live apart from his family if he returned to Bangladesh. 25 Having considered all of those matters, evidence from other sources, including UK Home Office country of origin information reports in relation to Bangladesh and gay and lesbian and bisexual or trans-gender activity in Bangladesh; and US State Department reports and Department of Immigration and Multicultural Affairs information services reports, the Tribunal then proceeded at AB167 to AB171 of the reasons to identify the eight reasons why the Tribunal could not be satisfied that the appellant is an homosexual. Each of those reasons identified by the Tribunal were viewed by it cumulatively, not necessarily each in isolation on their own and the Tribunal reached its conclusion by weighing all of those considerations in discharging its fact finding role. 26 Lloyd-Jones FM in his reasons summarised the eight particular propositions which influenced the Tribunal to conclude in the way it did. The Tribunal was concerned by the applicant's failure, and inconsistent evidence resulted in the Tribunal forming the view that this incident had not occurred. The Tribunal had considerable doubt about whether the applicant had a partner in Saipan. However, he later claimed that his family did not mention his getting married "because they knew he was a homosexual. " The Tribunal found this changing evidence concerning the applicant's family's change in attitude was unconvincing and cast further doubt upon his claim that they ever perceived the applicant to be homosexual. However, the Tribunal did not accept that the applicant and partner were caught engaging in sexual intercourse in 1992. The Tribunal also regarded as implausible the applicant's claim regarding the number of partner's family threatening the appellant. The appellant says that the questioning was too inquisitorial or too emphatic in its manner, particularly in relation to the resolution of the factual controversy as to whether the act of sexual engagement was discovered in the way initially put or later put. The proceedings before the Tribunal are not before this court in the sense of any transcript, which might reveal the sequence of questioning by the Tribunal. 28 However, the reasons formulated by the Tribunal canvass the factual assertions of the appellant and all the related material which went to the analysis of whether the Tribunal could be satisfied that the contended ground of a well-founded fear of persecution, namely, that ground of social engagement in homosexual relationships and persecution arising from those relationships was made out. The Tribunal ultimately could not be so satisfied. Such a matter falls squarely within the role of the Tribunal in deciding the factual questions. 29 The appellant challenged the decision of the Tribunal before the Federal Magistrates Court and in doing so relied upon a wide range of grounds. 30 I do not propose to recite each of those grounds and the resolution of them by the Federal Magistrate. It is sufficient for present purposes to say that six grounds were advanced before the Federal Magistrate. Grounds 1 and 2 went to criticism of the delegate in reaching the decision as the agent or representative of the Minister. That matter, of course, was not jurisdictionally open to the Federal Magistrates Court as its role was to conduct review of the decision of the Tribunal. Ground 3 has resonance with the contentions advanced in this court as a ground of error on the part of the Federal Magistrate in that it asserts a denial of procedural fairness and natural justice when assessing the claims and asserts that the Tribunal descended into a forensic and technical methodology for testing the credibility of the appellant which, in effect, was perverse and unsupportable. 31 It is said to be unsupportable because the Tribunal reached an unjust result by reason of its failure to consider the applicant's circumstances and placed undue emphasis on the controversy between the versions relating to the revelation of the appellant's sexual engagement with his former high school partner. Further, the appellant agitated that the explanation for the inconsistency that he offered, that he was panicked and lost his rhythm by not remembering the details, was not given appropriate weight by the Tribunal, especially having regard to the "honest" apology that he gave in the subsequent affidavit I have already described. Without going in to those matters in detail, it is sufficient to state the principle, and the principle is this. The methodology for testing factual matters before the Tribunal is an inquisitorial methodology. The manner of the exercise of that inquisitorial role, of course, can, in relevant circumstances, be perverse. Those circumstances would include circumstances where it is plain from proper evidence that the Tribunal has shut its mind to particular matters or has confused matters or has conducted itself in a way which is overbearing or intimidatory. The fact of asking questions, perhaps difficult questions, concerning each and every one of the various factual assertions put to the Tribunal is not of itself emblematic of unfairness or an overbearing or intimidatory matter. The testing of credibility is at the centre of the Tribunal's role and accordingly the Federal Magistrate, by reference to the authorities, dealt with that ground and rejected it. There is no error on the part of the Federal Magistrate in doing so. 32 Ground 4 before the Federal Magistrate also resonates with what is said in this Court as a ground of error, that is, the Tribunal engaged in an improper exercise of the power conferred upon it. Like the ground of appeal raised here, it was then devoid of any particularity and it was impossible for the Federal Magistrate to deal with a contention put at such a high level of abstraction. 33 Ground 5 asserted a jurisdictional error on the part of the Tribunal and it also resonates with the ground of appeal in this Court because it is contended that jurisdictional error arose out of the Tribunal's incorrect interpretation of applicable law as that law applied to the facts. Aspects of that matter went to the contended failure of the Tribunal to comply with s 424A of the Migration Act and a failure to put propositions to the appellant as to the basis upon which it might reach a decision, which might be adverse to the appellant. 34 The difficulty with that ground, of course, is that it is clear from the material I have described that a letter was written to the appellant, consistent with s 424A of the Migration Act , in which the Tribunal set out the particular matter of concern relating to the inconsistency in the versions concerning the revelation of the act of sexual engagement. That was a matter of concern to the Tribunal and it was put to the appellant and a response was given. There is no obligation to put to the appellant, for the purposes of inviting a response, material of the kind described in the ground of appeal such as the long list of cases relied upon by the Tribunal in isolating what is, as a matter of law, a "refugee" and other such matters. 35 The material put by the Tribunal to the appellant for the purposes of s 424A represented a discharge of its obligations, and I can find no error on the part of the Federal Magistrate in the way in which the Federal Magistrate dealt with that ground. 36 The final ground was ground 6 by which the appellant contended that the Tribunal failed to take in to account all relevant matters. No particulars of that ground were given and the Federal Magistrate determined that the Tribunal had taken in to account and properly considered and assessed the material before it at least in terms of the analysis reflected in the reasons and on that basis the Tribunal could not be satisfied that the appellant held a genuine fear of harm or a genuine fear of suffering persecution should he return to Bangladesh. Thus, the Tribunal could not be satisfied that the appellant held a well-founded fear of persecution for a Convention reason. 37 The appellant, in this court, has raised the matters I have previously mentioned. I am not satisfied that there is any demonstrated constructive failure on the part of the Tribunal to exercise its jurisdiction. As to ground 2, that ground goes to the activities of the delegate of the Department and that ground is not sustainable. Ground 3 is not sustainable, as it is clear from the reasons that the Tribunal had regard to the nature of the social relationship between the appellant and his partner and the implications for individuals engaged in homosexual activity in Bangladesh against the background of some country information. There was no obligation under the Act to put that country information to the appellant. As to ground 4 of the Notice of Appeal, that ground does not apply to the present circumstances for the reason I mentioned earlier. The Tribunal did not give me an opportunity to respond to Tribunal findings. That the RRT member did not ensure, as per reasonable practicable, or at all as required by 424A(1)(b) of the Migration Act , that the applicant understood why the independent country information was relevant to the applicant RRT review application in assessing applicant's protection visa application. In breach of the common law rules of procedural fairness, the Tribunal did not provide the applicant with any of the documents or put the substance of any of these assertions contained in the document, and relied upon by the Tribunal, to the applicant, or inform the applicant that the Tribunal would rely upon the documents and give the applicant an opportunity to respond to assertions in the documents. 39 A number of things should be said about this ground, apart from its strict inapplicability to the present circumstances. The first is that the Tribunal engaged in a process of reasoning which led it to form a view about the credibility of the applicant or more particularly as to whether it, as a fact finding Tribunal, could be satisfied of the contentions put to it by the appellant. The process of reasoning by which the Tribunal comes to a view is entirely a matter for it. It may, of course, miscarry in a recognised sense, which would give rise to jurisdictional error, but the process of reasoning itself is not information which must be put to the appellant. The weighing up and analysis of the various competing contentions is simply that: it is a process of reasoning by which the Tribunal comes to a view. 40 The question of what is procedurally fair in terms of information to be put to the appellant is, in fact, determined by the Act under Division 4 of Part 7. The appellant relies upon s 424A to say that the Tribunal did not write to him in advance of handing down its decision and invite him to comment upon the reasoning of the Tribunal in proposing to reach a decision adverse to him. The authorities make it clear that there is no such obligation in the circumstances applicable to the appellant ( SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at [18] and VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 at 477. 41 In addition, there is no obligation upon the Tribunal to provide what is described as "a running commentary," upon what it thinks about the evidence as it is considering, or as it may deal with that evidence ( SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152). In relation to the country information referred to by the Tribunal in its reasons, that information was not adverse to the appellant and ultimately not relevant to the findings of the Tribunal because the Tribunal did not ultimately accept that the appellant was a homosexual. In any event, independent country information does not enliven, within s 424A , an obligation to put such information to the appellant and that results from the proper operation of s 424A(3)(a). 42 Having regard to all these observations, it naturally follows that the appeal must be dismissed with costs to be taxed or agreed. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of whether a federal magistrate fell into error by failing to find jurisdictional error on the part of the refugee review tribunal and whether the tribunal constructively failed to exercise its review jurisdiction migration

This section requires the scheme to be registered. ASIC seeks a declaration that the scheme was an unregistered managed investment scheme and an order that it be wound up. ASIC also contends that the second defendant, Mr Berlowitz, who is said to have controlled the HLP group, himself operated the scheme. Accordingly, ASIC seeks a declaration that Mr Berlowitz operated the illegal scheme and that he carried on a financial services business without an Australian financial services licence. ASIC also wants an injunction permanently restraining Mr Berlowitz from operating a financial services business or from seeking funds from investors in connection with the operation of an unregistered managed investment scheme. The issue in dispute is whether, even if the facts are made out, the orders should be made. 2 It is convenient to begin with a description of the arrangements put into effect by the HLP group. As little as possible will be said about the role of Mr Berlowitz. His position will be considered separately. The starting point is with the structure of the HLP group. HLP Financial Planning (Aust) Pty Ltd (HLPFP) was the lead company in the group. It described its activities as "seek[ing] out and develop[ing] worthy investment opportunities for its clients and client investors. " HLPFP conducted its operation as trustee of the HLP Financial Planning (Aust) Unit Trust (HLP Unit Trust). Four companies in the HLP group each held 41 units in the HLP Unit Trust. Each company was in turn the trustee of a unit trust and held the units in that capacity. Initially all the units in the sub-trusts were held by Leaberl Pty Ltd, another member of the HLP group. 3 Some time after March 2005 HLPFP began looking for investors willing to purchase units in the sub-trusts. A prospectus entitled "Private Investment Opportunity" was used to promote the investment. According to the prospectus, "[b]y acquiring units in [one of the sub-trusts], an investor becomes an indirect unit holder of the HLP Financial Planning (Aust) unit trust. This entitles the investor to the distribution of profit in line with their percentage ownership. " The minimum amount an investor could subscribe was $50,000. The money invested together with other investors' money was to be applied toward the purchase of "loan books" upon which interest would be paid. In the "Investment Summary" section there was a profit forecast for each of the financial years ending 30 June 2005, 2006, 2007 and 2008. The projected return for those years based on a minimum investment of $50,000 was $2,500, $5,500, $28,500 and $33,500 respectively. That is, potential investors were told the total amount of anticipated distributions an investor would receive over four years was $70,000, with distributions to be made monthly. The prospectus provided a description of the HLP group and details of past projects undertaken by some group members. There was also a discussion about "Future Projects", one of which it was asserted had "guaranteed" minimum monthly returns. A section headed "Benefits and Limitations" contained discussion of "investment benefits" and "investment risks". On the benefits side it was said that: "The projected level of the returns (although not guaranteed) generated by the investment should provide a reasonable potential for capital growth and regular profit disbursements... Investors will have common investment objectives... The business investment will be professionally managed on behalf of the investors..." The discussion of risks was brief. The principal risks were: "The sale price of units purchased, like shares, reflects no increase or a lesser amount than the cost... [the] [i]nability to sell the units quickly... [and the] [g]eneral commercial risk". 4 Between April 2005 and September 2005 55 investors purchased units in the sub-trusts from Leaberl. The aggregate amount invested was $4,295,000. Most of the money went to Leaberl. Some money, approximately $150,000, found its way into the accounts of other HLP group companies. 5 For a time everything seemed to be going well. Investors received interest payments as had been promised. Then in late 2005 investors were told there was a problem. In a letter dated 7 December 2005 under the hand of Mr Berlowitz investors were informed that "HLP has been forced to take a new direction". The letter went on to explain that as a result of fighting "the legal dispute with 'sacked CEO' of [a HLP group company] we have fallen behind in the momentum of all the businesses". As a result of the dispute all HLP group companies bar one had "ceased trading". Investors were advised that they would continue "to receive all [their] current regular monthly payments" but that it was necessary to sell the group's one remaining business "and this will result in all of [the investors'] original investment being repaid to [them] in full by about 30/12/06". 6 In the new year investors were told there was an alternative to having their investment repaid. The alternative was explained in a letter from Mr Berlowitz dated 14 February 2006. It was the "conversion" of the investment into a loan to Beachmere View Pty Ltd (Beachmere) and Mr Berlowitz as joint borrowers. Investors were advised that interest on the loan would be paid monthly at the rate of 10 per cent per annum commencing on 1 April 2006. They were told they had the option of redeeming their investment or entering into the loan agreement. If an investor opted for the loan, he or she could nominate the term of the loan as being any of one to eight years. Most, if not all, investors took up the offer and entered into a written loan agreement with Beachmere and Mr Berlowitz. 7 The HLP scheme came to the attention of ASIC which then commenced an investigation. During the course of that investigation ASIC obtained documents in response to notices served under s 30 of the Australian Securities and Investments Commission Act 2001 (Cth). It also used its power under s 19 of the ASIC Act to examine Mr Berlowitz. 8 This action was commenced when the investigation had concluded. An urgent application was made to wind up the HLP companies (other than HLP Mortgage Company (Aust) Pty Ltd) and to obtain holding orders pending trial. The HLP companies were wound up without objection and Mr Berlowitz gave undertakings not to dispose of his assets pending trial. 9 Mr Georges of Ferrier Hodgson was appointed as liquidator of the HLP companies being wound up. Since his appointment Mr Georges has conducted a preliminary investigation into the affairs of the group. He has filed a report setting out the results of his investigation. One topic discussed by Mr Georges is the financial position of the group. Mr Judd QC, who with Mr Segal appeared for Mr Berlowitz, objected to the tender of the report because ASIC had not arranged for Mr Georges to be present for cross-examination. Still, I propose to refer to his discussion of the financial position of the group as it seems to be uncontroversial: Evidence Act 1995 (Cth), s 190. Mr Georges says that Leaberl is the only company in the HLP group with any tangible assets. That company is, however, insolvent, having a deficiency of assets over liabilities of over $12 million. Mr Georges' view is that the position of the group overall is much worse. Investors are owed more than $35 million and there is little prospect of them recovering any money. 10 I mention this aspect of Mr Georges' report to explain the course this action has taken. Initially ASIC sought an order that if the scheme established by the HLP group was an unregistered managed investment scheme it should be wound up. In light of Mr Georges' assessment of the financial position of the HLP group, ASIC believes that nothing would be gained by a winding up order. It is now of the opinion that it would be in the best interests of investors if the assets under Mr Georges' control were distributed without incurring the additional cost of winding up the scheme. On the other hand, ASIC still seeks a declaration that the scheme is an unregistered managed investment scheme. Mr Judd says making that declaration is a waste of time. 11 This particular dispute raises two issues. The first is whether the scheme is a managed investment scheme. If it is, it is common ground that the scheme was not registered as required. The second issue is whether, in the circumstances, a declaration should be made. 12 Section 9 of the Corporations Act relevantly defines a managed investment scheme as a scheme that has the following features: (a) investors contribute money or money's worth as consideration to acquire rights to benefits produced by the scheme; (b) the contributions are to be pooled or used in a common enterprise to produce the financial benefits; and (c) the investors do not have day-to-day control over the operation of the scheme. There is no doubt that each element of the definition is satisfied here. Investors contributed funds to share in the profits of the loan book business conducted by HLPFP. The funds were to be pooled to finance the operation of the business. No investor had control over any aspect of the business. 13 The only point in contest (and only faintly so) is whether there should be a declaration that the scheme was an unregistered managed investment scheme. The power to grant declaratory relief derives from s 21(1) of the Federal Court of Australia Act 1976 (Cth). The power may be exercised whether or not other relief is sought. ASIC seeks the declaration so that there will, as it were, be a statement on the public record that the scheme was unlawful. Mr Judd contends there is no utility in making the declaration because the winding up of the HLP companies has resulted in the winding up of the scheme. Therefore, he says, nothing further need be done by the court. 14 It is true that the scheme was brought to an end when the HLP companies were wound up. Nonetheless it is appropriate to make the declaration sought by ASIC. Many people put money into the scheme. They are entitled to know that the scheme was illegal and that is one reason why the HLP group was wound up. The declaration will not enable the investors to recover their money. But at least it will inform them what they had got themselves into. 15 The real debate in this case is whether I should consider making a declaration that Mr Berlowitz had operated the scheme in contravention of s 601ED(5) and grant perpetual restraining orders against him. Section 601ED(5) provides that a person must not "operate" a managed investment scheme unless the scheme is registered. There are several cases which hold that where a company operates an unregistered managed investment scheme its directors also "operate" the scheme: eg Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd (2002) 41 ACSR 561, 574; Re Lawloan Mortgages Pty Ltd [2003] 2 Qd R 200, 218; Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132 , [19]. According to those cases it all depends on the extent of the director's involvement in the management of the scheme. 16 The source of the court's power to grant a declaration has been identified. The court's power to grant an injunction is derived from ss 22 and 23 of the Federal Court of Australia Act . In a company case the power also derives from s 1324 of the Corporations Act . The power to make each order is discretionary. Here, however, we are not concerned with the usual factors that bear on the discretion to grant or withhold relief. In this case the court acting in its civil jurisdiction is asked to make an order in relation to Mr Berlowitz' allegedly criminal conduct. In that kind of case special rules apply. It is necessary to examine those rules. 17 Before undertaking that task two important features of this case should be noted. The first is that ASIC's investigation into the activities of Mr Berlowitz was not confined to determining whether he has committed merely regulatory offences. Ms Marks, counsel for ASIC, told me that also under consideration is whether Mr Berlowitz should be charged with criminal offences. She did not identify the particular offences but indicated that if charges are laid ASIC's "preliminary view... is [that the charges would be tried in] a Victorian court, and probably the County Court. " It follows that consideration is being given to charging Mr Berlowitz with an indictable offence to tried before a jury. 18 The second feature is this. The evidence upon which ASIC will rely to establish that Mr Berlowitz operated the unregistered managed investment scheme is based substantially on statements (said to be admissions) he made during his s 19 examination. When an examination is conducted under s 19 the examinee must answer all relevant questions put to him: ASIC Act, s 21(3). A failure to answer a question without reasonable excuse is an offence punishable by a fine not exceeding 100 penalty units ($11,000) or imprisonment for two years or both: s 63. Self-incrimination privilege is not a reason for refusing to answer a question: s 68(1). On the other hand, any statements made at a s 19 examination that might tend to incriminate the examinee or make him liable to a penalty is not admissible in a criminal proceeding or in a proceeding for the imposition of a civil penalty: s 68(3). The effect of these provisions is that any statement made by Mr Berlowitz can be used against him in this proceeding because it is not a civil penalty proceeding (only declarations and injunctions are sought) but the statements could not be tendered in evidence in the contemplated criminal proceeding. 19 Now I come to the rules. The traditional view was that civil courts have no jurisdiction to grant relief in aid of or to supplement the criminal law. In Gee v Pritchard (1818) 2 Swans 402, 413 [36 ER 670, 674] Lord Eldon said: "I have no jurisdiction to prevent the commission of crimes". The jurisdictional impediment to the grant of an injunction was removed by ss 79 and 83 of the Common Law Procedure Act 1854 (UK); Quartz Hill Consolidated Gold Mining Co v Beall (1882) 20 Ch D 501. Nonetheless, civil courts remained reluctant to intervene. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75 ; (1935) 54 CLR 230, 239 Latham CJ said: "A court of equity has no general duty to 'enforce the law,' either at the suit of the Attorney-General or of private persons. " McTiernan J said (at 255-256): "The provisions of the law for the trial and punishment of offenders are not to be supplanted or supplemented by this remedy [of injunction]. Although the cases of interference were few, there were four broad categories in which intervention was thought to be justified: to ensure that statutory bodies acted within the limits of their jurisdiction; to enforce local laws; to enjoin those who flouted the law; to protect public safety. Attorney-General v Westminster City Council [1924] 2 Ch 416 (an injunction to restrain a local council from using a library building for administrative purposes rather than as a public library) is an example of the first category. Cooney v Ku-ring-gai Municipal Council [1963] HCA 47 ; (1963) 114 CLR 582 falls into the second category. There an injunction was granted to restrain the use of a building in a residential area for the purposes of trade. The breach of the by-law caused disadvantage to residents living in the locality. See also Attorney-General v Shrewsbury (Kingsland) Bridge Co (1882) 21 Ch D 752 (an injunction to restrain interference with a public highway and a public navigable stream by illegal acts of obstruction); Attorney-General v London and North Western Railway Co [1900] 1 QB 78 (an injunction to restrain a railway company from allowing its trains to exceed four miles per hour when travelling over a level crossing). 21 The leading English example of a case in the third category is Attorney-General v Harris [1961] 1 QB 74. The defendants had been convicted on countless occasions of selling flowers outside a cemetery contrary to a century old statute. The flower stall was an obvious benefit to those who visited the cemetery. Nevertheless, Sellers LJ observed (at 86): "It cannot, in my opinion, be anything other than a public detriment for the law to be defied, week by week, and the offender to find it profitable to pay the fine and continue to flout the law. There the defendants had violated building safety regulations by permitting guests to occupy a hotel with inadequate fire safety precautions. The evidence showed there was a serious risk to the safety of patrons. Summary proceedings in the Magistrates Court for breach of the regulations were delayed so an application was made in the High Court of Justice for an interlocutory injunction to restrain the defendants from continuing to accommodate guests in their hotel. The injunction was granted and the decision upheld by the Court of Appeal. 23 The cases of judicial interference are not limited to the four broad categories. There are examples, although rare, of interference in other circumstances: see, for example, Attorney-General ex rel Bedfordshire County Council v Howard United Reformed Church Trustees, Bedford [1976] AC 363 (an injunction to restrain the demolition of a listed building); Kent County Council v Batchelor (No 2) [1979] 1 WLR 213, 220 per Talbot J: ("It is not just a case of taking action to prevent a criminal offence. It is a case of preventing interference with the areas of natural beauty which [the plaintiffs] have sought by their tree preservation orders to preserve. They do not involve violations of the criminal law proper. This is not to suggest that a civil court will not interfere in cases which involve serious criminality. But, whatever type of criminal case, all the leading authorities caution against a court that is exercising civil jurisdiction attempting to supplant the criminal law. The consensus both in England and Australia is that this should only happen in exceptional circumstances. 25 A good starting point is the decision in Gouriet v Union of Post Office Workers [1977] UKHL 5 ; [1978] AC 435. The plaintiff, a private citizen, sought a declaration that it was unlawful for two Post Office unions in protesting against apartheid to solicit interference with the mail to, or communications with, South Africa. He also sought an injunction to restrain that interference. The trial judge refused the injunction holding he had no jurisdiction to grant it when the Attorney-General would not bring a relator action. On appeal to the Court of Appeal an interim injunction was granted and declarations were made against the unions. The validity of those orders were in dispute when the matter came before the House of Lords. Several of the Law Lords dealt with the "comparatively modern use" (as Lord Wilberforce described it at 481) of the Attorney-General invoking the assistance of a civil court in aid of the criminal law. Lord Wilberforce said (at 481): "It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty... or to cases of emergency... It is one not without its difficulties". Later (at 481) he said that: "[T]his jurisdiction --- though proved useful on occasions --- is one of great delicacy and is one to be used with caution. " Viscount Dilhorne said (at 491) that the exercise of the jurisdiction to intervene is "exceptional". Earlier he had identified the kinds of problems that might arise. The relevant passage is worth quoting. A person charged, for instance, with an offence under section 58 or 68 of the Post Office Act 1953 has the right of trial by jury. If, before he commits the offence, an injunction is granted restraining him from committing an offence under those sections and he is brought before the civil courts for contempt, his guilt will be decided not by a jury but by a judge or judges. If he is subsequently tried for the criminal offence, might not the finding of guilt by a judge or judges prejudice his trial? This question is not to my mind satisfactorily answered by saying that juries can be told to ignore certain matters. It was suggested that this difficulty might be overcome by adjourning the proceedings for contempt until after the conclusion of the criminal trial. If that was done, the question might arise then as to the propriety of imposing a punishment in the contempt proceedings additional to that imposed on conviction for the same conduct in the criminal court. It is not accurate to describe it as preventative justice. It is a deterrent and punitive procedure; but this is characteristic too of the enforcement of criminal law through the ordinary courts of criminal jurisdiction. The very creation by Parliament of a statutory offence constitutes a warning to potential offenders that if they are found guilty by a court of criminal jurisdiction of the conduct that is proscribed, they will be liable to suffer punishment up to a maximum authorised by the statute. When a court of civil jurisdiction grants an injunction restraining a potential offender from committing what is a crime but not a wrong for which there is a redress in private law, this in effect is warning him that he will be in double jeopardy, for if he is found guilty by the civil court of committing the crime he will be liable to suffer punishment of whatever severity that court may think appropriate, whether or not it exceeds the maximum penalty authorised by the statute and notwithstanding that he will also be liable to be punished again for the same crime if found guilty of it by a court of criminal jurisdiction. Imperial Tobacco was being prosecuted for a scheme alleged by the Director of Public Prosecutions to be an unlawful lottery. It sought a declaration from the commercial court that the lottery was lawful. The trial judge did not grant the declaration because he was of the view the scheme was both an unlawful lottery and an unlawful competition. The Court of Appeal was of the opposite opinion and granted the declaration. On appeal to the House of Lords one of the issues that arose was whether a declaration should have been granted in light of the criminal proceedings. The House ruled that the civil court should not have granted any relief. On this aspect I propose to refer only to the speech of Viscount Dilhorne. Such a declaration in a case such as the present one, made after the commencement of the prosecution, and in effect a finding of guilt or innocence of the offence charged, cannot found a plea of autrefois acquit or autrefois convict, though it may well prejudice the criminal proceedings, the result of which will depend on the facts proved and may not depend solely on admissions made by the accused. In my opinion it would be a very exceptional case in which it would be right to do so. In my opinion it cannot be right to grant a declaration that an accused is innocent after a prosecution has started. The editor and senior journalists of The Guardian were conducting a press campaign advocating a republican form of government for England. They sought a declaration that their campaign did not offend the Treason Felony Act 1848 (UK). In truth there was no prospect of the editors and journalists being charged with any offence. That did not deter them from bringing the action. The House of Lords said that the republican campaign did not offend the statute. The Law Lords also discussed the circumstances in which a court would entertain a claim for declaratory relief on a question of criminal law. 28 Lord Steyn dealt most extensively with this issue. He said (at 367) that: "Normally, the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted. But in truly exceptional cases the court may allow such a claim to proceed. " He then laid down (at 367-368) the criteria that were to be satisfied to show that a case was exceptional. The first was the existence of a genuine dispute about the subject matter, that is, whether there was likely to be a prosecution if the conduct were engaged in. The second was whether the case was "fact sensitive" or not. If the dispute involved a question of pure law a declaration might be appropriate but not if the facts were in dispute. The third criterion was whether there was "a cogent public or private interest" which would be advanced by the grant of a declaration. 29 Lord Rodger approached the issue rather more generally. The authorities do not spell out what constitutes a very exceptional case for these purposes. In ordinary cases people must take and act on their own legal advice. So, broadly speaking, a very exceptional case must be one where, unusually, the interests of justice require that the particular claimant should be able to obtain the ruling of the civil court before embarking on, or continuing with, a particular course of conduct which, on one view, might expose him to the risk of prosecution. If the court is asked to rule on future conduct and the issue involved is simply a question of law, the court is more likely to intervene. On the other hand, it is less likely to act in relation to past conduct, especially if the facts are in dispute. Moreover, if criminal proceedings are pending, the court will not intervene at all: R v DPP ex parte Camelot plc [1997] Admin LR 93. The position is likely to be the same if criminal proceedings have not begun but are threatened: Rusbridger [2003] UKHL 38 ; [2004] 1 AC 357, 367. 31 The position in Australia appears to be in a state of flux at least in company cases. The early cases, including decisions of the High Court, followed the English principles. In recent times, however, there has been a shift away from that circumspect approach. The reason for the shift must be examined. 32 The traditional approach was referred to in Mutual Home Loans Fund of Australia Ltd v Attorney-General (NSW) [1973] HCA 61 ; (1973) 130 CLR 103. In this action the Attorney-General sought a declaration that an advertisement published by Mutual Home Loans constituted an invitation to the public to take up an interest in the corporation in contravention of the prospectus provisions of the Companies Act 1961 (NSW). The Attorney-General also sought an injunction to restrain future advertisements. The ability of the Attorney-General to bring such a proceeding has been said to depend upon persistent breaches of the criminal law antecedent to the commencement of the suit. It would seem to be otherwise where the suit is to restrain breach of a statutory provision not enforceable by penalty or other criminal sanction. In such a case the Attorney-General may sue to protect the public interest in the due observance of the statute. That involved an application for a declaration that cabinet documents required to be produced on subpoena before a magistrate in committal proceedings were wrongly accorded Crown privilege. There was also a cross-claim for a declaration that the facts alleged against the defendant did not constitute an offence in law. One argument raised in the High Court was that there was no power to grant the declarations sought. The High Court held the power did exist and should be exercised. Gibbs ACJ dealt with this issue in some detail. First of all he rejected an argument that for the purposes of granting declaratory relief in matters the subject of criminal proceedings a distinction should be drawn between regulatory offences and what I have described as true crime but what Gibbs ACJ described, rather more accurately, as crimes involving moral turpitude. He said that whenever a declaration is sought the circumstances must be carefully examined, especially if criminal proceedings have begun. But he said that to intervene some special reason must exist. He put it this way (at 25): "[T]he circumstances must be exceptional to warrant the grant of relief. " In this connection Gibbs ACJ endorsed the observations of Jacobs P in Shapowloff v Dunn [1973] 2 NSWLR 468, 470 that a court will be reluctant to make a declaration in a matter which impinges directly upon the course of criminal proceedings. However Gibbs CJ said (at 26) that the case before the High Court was "most exceptional". The proceedings in the Court of Petty Sessions at Queanbeyan were brought against a former prime minister and members of his cabinet and involved issues of great importance. 34 Inglis v Moore (1979) 24 ALR 411 is a decision of the Full Federal Court. The plaintiff sought declarations that the defendants were guilty of a criminal conspiracy contrary to s 86 of the Crimes Act 1914 (Cth) and the common law. The trial judge refused the declaration on the basis that the court should not entertain the application. The Full Court upheld the decision. St John J said (at 414) that what was sought was "outside the ambit of declaratory relief. " He referred to Sankey v Whitlam and said (at 414), correctly, that the cases to which Gibbs ACJ referred in holding there was jurisdiction to intervene in criminal cases did "not reveal a single instance in which, in civil proceedings, the declaration sought has been one that certain actions of the defendants constituted a crime after finding facts in those proceedings. " All were cases in which there was no contest as to the facts. He went on to say (at 415) that: "Whether indictable offences have been committed is the concern of the criminal courts and are for trial there. " Thus he concluded that the court could not intervene. Even if declaratory relief could as a matter of jurisdiction be granted St John J said (at 415): "a court would never exercise its discretion in favour of granting such relief. " He explained that "[w]hat, in effect, would happen if such an application were allowed to proceed would be that a defendant in civil proceedings would be found to have committed a crime without having the various advantages which are afforded him in a criminal trial. " They referred with approval to what Lord Wilberforce said in Gouriet [1978] 1 AC 435, 481 paraphrasing Lord Eldon LC in Attorney-General v Cleaver (1811) 18 Ves Jun 211 [34 ER 297]: "These and other examples which can be given show that this jurisdiction [to grant a declaration] --- though proved useful on occasions --- is one of great delicacy and is one to be used with caution. There the High Court held it was appropriate to grant declarations that the defendants' conduct contravened ss 81, 82 and 83 of the Companies Act 1961 (NSW). Those sections, respectively, prohibited a person from offering any "interest" as defined to the public unless that offer was made by the company or a person authorised under the seal of the company, a statement in writing equivalent to a prospectus was issued and there was an approved deed in force. A contravention of each provision was a criminal offence. 37 To appreciate the significance of this case it is necessary to know something of its history. Initially the Corporate Affairs Commission sought a declaration that the defendants' conduct had breached ss 81, 82 and 83 as well as an injunction to restrain future breaches. The case was tried by Helsham CJ in Eq on an agreed statement of facts. Helsham CJ found in favour of the Commission and made the orders sought: Corporate Affairs Commission v Australian Softwood Forest Pty Ltd [1978] 1 NSWLR 150. There was an appeal to the Court of Appeal. The Court of Appeal agreed that there were breaches of ss 81, 82 and 83 but held that only an injunction should go it not being "a proper case for declarations which are little more than prefatory averments to the grant of an injunction": Attorney-General (NSW) ex rel Corporate Affairs Commission v Australian Softwood Forests Pty Ltd [1979] 2 NSWLR 73, 76. 38 Each side appealed to the High Court: the defendants on the basis that its scheme did not involve the creation of any interest as defined and the Attorney-General against the refusal by the Court of Appeal to grant declarations. By the time the appeal was heard the defendant was no longer interested in pursuing the scheme, so the injunction was not pressed. The High Court ruled that declarations should have been made. Mason J (with whom Stephen J agreed) did not explain why. Neither did Wilson J. Gibbs CJ, who agreed generally in the reasons of Mason and Wilson JJ, did not explain why a declaration should be made, except to say that the Court of Appeal had erred. Murhpy J said (at 136) that both a declaration and an injunction were appropriate forms of relief to protect against the "most widespread and successful of the species of fraud known in Australia and elsewhere as 'the investment racket' [of] the forest or plantation variety. " But, as the injunction was not pressed, the Court held that only the declaration should be made. 39 In Corporate Affairs Commission (NSW) v Transphere Pty Ltd (1988) 15 NSWLR 596, 603 Young J said that by its decision in Australian Softwood Forests the High Court had given its "seal of approval" to the New South Wales practice of the Crown being entitled to obtain a declaration that a business person's conduct contravened the law. This is true provided two important points are kept steadfastly in mind. The first is that Australian Softwood Forests was argued from beginning to end on an agreed statement of facts. The only issue that separated the parties was whether, on those facts, the defendants had offered to the public an "interest" within the meaning of the Act and were accordingly in breach of ss 81, 82 and 83. The second point is that there was no suggestion at any stage of the proceeding that criminal charges might be laid against the defendants. The way the case was presented, and the arguments put in each court, showed that the Corporate Affairs Commission sought to vindicate its view of the defendants' conduct by civil rather than criminal proceedings. This is not at all surprising. The legal issues raised were complex and, perhaps, more effectively dealt with by a civil rather than a criminal court. It is not possible, therefore, to take from Australian Softwood Forests that there had been a wholesale change to the circumstances in which a civil court will intervene in the criminal law. In any event, if the High Court had intended to change the law that dramatically it would have said so. 40 Still, there is a need to rethink the position in company cases. The need arises because the Corporations Act now allows, indeed contemplates, the enforcement of most of its provisions (including those creating criminal offences) by a court in the exercise of its civil jurisdiction granting relief by way of injunctions, what are known as "civil penalties" and other remedies appropriate to the circumstances. To understand how this has come about it is necessary to go back to the 1970s. 41 A Senate Select Committee on Securities and Exchange was appointed on 19 March 1970 under the chairmanship of Senator Rae to inquire into the desirability of establishing a securities and exchange commission that would be empowered to act against improper practices in relation to the shares and securities of public companies. The Committee's investigation revealed that corporate fraud, misconduct and incompetence were pervasive in a series of corporate collapses that occurred during the speculative boom in mining shares in the late 1960s and early 1970s. In its report handed down on 18 July 1974 the Committee's major recommendation was that a national corporate regulator should be established in order to prohibit undesirable market practices and thereby restore public confidence in the stock market and protect those who invest in the securities of public companies. This led to the creation of the National Companies and Securities Commission (a predecessor of ASIC). The NCSC was granted broad investigatory powers. Parliament wanted to avoid a situation where the regulator's investigation into misconduct had no practical benefits and amounted to nothing more than a public record of breaches: Commonwealth, Parliamentary Debates , Senate, 5 December 1974, 3240-3242 (Lionel Murphy, Attorney-General). As a result the NCSC was given the power to commence or intervene in proceedings in a wide range of circumstances. 42 It was also thought appropriate to give to the NCSC, as well as to persons affected by a contravention, power to obtain an injunction to prevent contraventions of the Companies Code and related legislation. The first attempt to introduce such a provision in the mid 1970s failed: see the Corporations and Securities Industry Bill 1974 (Cth) cl 274. But when the co-operative scheme legislation was enacted between 1979 and 1981 the power to grant an injunction was included in the Companies Code (s574) and the Securities Industry Code (s 149). The Companies (Acquisition of Shares) Code introduced a more far-reaching set of powers to deal with contraventions of that statute. The powers included the right to restrain the disposal of shares, to restrain voting rights on shares and to restrain a company from making payment of any sums due in respect of shares (ss 45, 46 and 47). 43 The co-operative scheme legislation was replaced by the Corporations Law , which came into operation in 1990 and 1991. Instead of several statutes regulating the affairs of companies and dealings in securities there was, from that point, as there had been in the past, one statute. The enforcement provisions that had been in the co-operative scheme legislation were found in s 1324 (injunctions) and ss 737-744 (orders for contraventions of the acquisition of shares provisions) of the Corporations Law. In the current legislation the successor provisions are ss 1324 (injunctions) and 1325A (remedial orders for contraventions of Chs 6 (takeovers), 6A (compulsory acquisitions and buy-outs), 6B (rights and liabilities in relation to Chs 6 and 6A) and 6C (information about ownership of listed companies and managed investment schemes)). 44 Later, the shift to civil enforcement received a sharp boost. This resulted from the report of the Senate Standing Committee on Legal and Constitutional Affairs, chaired by Senator Cooney, known as the Report on the Social and Fiduciary Duties and Obligations of Company Directors (1989). The report stated (at 190) that criminal penalties were a necessary means of enforcing the companies legislation for conduct that involves fraud and dishonesty and is "genuinely criminal in nature". The report recommended (at 191), however, that the companies legislation be amended to include "civil penalties" for breaches by directors where no criminality is involved. The result was the introduction by the Corporate Law Reform Act 1992 (Cth) of a civil penalty regime. This was a scheme by which certain breaches of the Corporations Law were to be dealt with by a court exercising civil jurisdiction operating alongside the criminal courts. 45 Under the scheme certain provisions, most of which dealt with the duties and liabilities of corporate officers, were designated as "civil penalty provisions" (Corporations Law, s 1317DA; see now Corporations Act , s 1317E). The court was given power to declare that a person had contravened a civil penalty provision. The power was mandatory where the court was satisfied a contravention had occurred (CL s 1317EA(2); CA s 1317E(1)). A person who contravened a civil penalty provision was exposed to a number of "civil penalty orders" (CL ss 1317EA-1317EH; CA ss 1317E - 1317HA ). If the contravener was dishonest and intended to gain an advantage or intended to deceive or defraud someone, he was also liable to be prosecuted in criminal proceedings (CL s 1317FA and sch 3). Although the same conduct could give rise to both civil penalties and criminal sanctions (CL s 1317EA(1)), civil penalty proceedings and criminal proceedings were, in most cases, mutually exclusive. This was because criminal proceedings could not be brought if civil penalty proceedings had already commenced (CL s 1317FB). Likewise civil penalty proceedings could not be brought after criminal proceedings had commenced, except in very limited circumstances (CL ss 1317GC and 1317GD). Effectively it was necessary to make a choice between civil penalties and criminal sanctions. 46 The scheme was changed by the Corporate Law Economic Reform Program Act 1999 (Cth). The principal change was that a criminal proceeding could now be commenced during the currency of a civil penalty proceeding (CL s 1317N; CA s 1317N) or after such proceedings had been disposed of, whatever the outcome (CL s 1317P; CA s 1317P). And the criminal court was given priority over its civil counterparts. Thus, civil penalty proceedings would be stayed if criminal proceedings were begun (CL s 1317N; CA s 1317N). There was, though, a practical limitation to the commencement of a criminal proceeding. Evidence of information given or documents produced by an individual in proceedings for a civil penalty was not admissible in criminal proceedings against the individual (CL s 1317Q; CA s 1317Q). The other side of the coin was that a civil penalty proceeding could not be brought if the offender was convicted of an offence (CL s 1317M; CA s 1317M). 47 The orders that may now be made in a civil penalty proceeding, in addition to a declaration of contravention, are that the person pay a pecuniary penalty of up to $200,000 (s 1317G) and that the person pay compensation to a corporation or registered scheme that has suffered loss because of the contravention (ss 1317H and 1317HA). If a declaration of contravention is made the court may also order that the person be disqualified from managing a corporation (s 206C). A declaration of contravention must specify the things mentioned in s 1317E(2), including identifying the person who contravened the relevant provision and describing the conduct that constituted the contravention. The declaration is conclusive evidence of those things (s 1317F). So, the declaration may be used to prove those things in other civil proceedings. 48 To this point, the discussion has been about the way in which a court exercising its civil jurisdiction in a civil penalty proceeding is able to grant relief in company cases, that is supplemental to criminal law. It is also worthwhile making reference to the ever increasing range of civil remedies that may be granted by a civil court in the event of a breach of the Corporations Act . Some, such as an order to disclose information or publish advertisements under s 1324B , apply only to certain kinds of breaches. Others, like the power to prohibit a person who contravened a provision of the Corporations Act from disposing of his assets under s 1323(1) , apply to contraventions of any provision. Then there are the remedies available to a person who has suffered loss from a breach. For example: s 1325(5)(e) permits the recovery of damages resulting from a breach of a provision in Chs 5C (managed investment schemes), 6CA (continuous disclosure), 6D (fundraising) or Pt 7.10 (market misconduct and other prohibited conduct relating to financial products and financial services); ss 1317H and 1317HA allow the recovery of damages for a breach of a civil penalty provision; s 670B provides for compensation for loss caused by misstatements in or omissions from takeover documents. 49 The expanding power of the court on its civil side to deal with criminal conduct made a clash with the criminal court inevitable. Parliament was alert to the problem. Since 1981 there has been a provision in the companies legislation that civil proceedings are not to be stayed merely because the proceeding discloses or arises out of an offence (Companies Code s 543 ; CL s 1331 ; CA s 1331). Without such a provision courts might not allow a civil proceeding to go ahead until the criminal law had played itself out. 50 The current regime of corporate regulation is, as the Cooney Committee's report observed (at 190), characterised by a "pyramid of enforcement". The basic premise is that to deter breaches of the legislation, there should be various levels of enforcement that correspond to the seriousness of the contravention. There are three levels to this pyramid: civil remedies at the base, civil penalties in the middle and criminal sanctions at the top. But it is the court exercising its civil jurisdiction that is the primary means of enforcement. Only the most serious contraventions now end up before a criminal court. Nonetheless when a criminal proceeding is commenced the criminal court should be given (and in many cases is expressly given) priority over civil litigation. 51 The present case is one where the contraventions of the Corporations Act of which Mr Berlowitz has been accused may result in him being prosecuted for criminal offences. What should happen when a civil court is asked to make a declaration of contravention and to grant an injunction restraining future contraventions when a criminal trial is pending or threatened? 52 There are many cases where courts have granted a declaration that a person has contravened the Corporations Act and enjoined any further contraventions. In all but two a criminal prosecution was not on the horizon; at least the possibility was not adverted to by the judge. In some cases the court explained the rationale for making the orders sought. The most common explanations were that ASIC's function as a public regulator made it appropriate to grant the relief or because it was in the public interest to make a declaration so that the illegal conduct bore the stamp of the courts' disapproval. See eg: Australian Securities and Investments Commission v Sweeney [2001] NSWSC 114 , [34]-[35] per Austin J ("The present proceedings have been brought by the public regulator to enforce the corporations and securities legislation... [The provisions setting out the objectives of the ASIC Act] imply that it is appropriate for the Commission to take civil proceedings for declaratory and injunctive relief in respect of past events, even if there is no risk of repetition, where the outcome may establish that the conduct complained of was wrongful (and thereby mark the Court's and the community's disapproval of it) and may deter other wrongdoers. It is appropriate for the Court to take these matters into account in the exercise of its discretion to grant or refuse such relief. "); Pegasus Leveraged Options 41 ACSR 561, 571 per Davies AJ ("[W]hen declarations are sought by a public authority such as ASIC, the declarations should be made if it is in the public interest to do so. "); Re McDougall; Australian Securities and Investments Commission v McDougall (2006) 57 ACSR 175, 187 per Young J ("Since Australian Softwood Forest , the courts have recognised that the grant of declaratory relief on the application of a statutory body such as ASIC may serve important law enforcement purposes. ASIC is charged with the administration and enforcement of the Act, and there will be many cases where it is in the public interest for the courts to make a declaration on ASIC's application that the Act has been contravened in specified respects. The making of such a declaration does not simply record the outcome of enforcement proceedings; it may also be an appropriate way of marking the court's disapproval of the contravening conduct" [citations omitted]. ); Re PFS Wholesale Mortgage Corporation Pty Ltd; Australian Securities and Investments Commission v PFS Business Development Group Pty Ltd (2006) 57 ACSR 553, 615 per Hargrave J ("There is no question of any unfair prejudice to any person if a declaration of contravention is made. The only question is whether the defendants or any of them have contravened a provision of Ch 7 of the Act or of any other law relating to dealing in "financial products" or providing "financial services" within the meaning of those concepts as defined in the Act."). 53 There are some cases where there is no discussion of the principles upon which the court acted: see eg Australian Securities and Investments Commission v Hutchings (2001) 38 ACSR 387; Australian Securities and Investments Commission v Young [2003] QSC 29 ; (2003) 21 ACLC 655; Australian Securities and Investments Commission v Drury Management Pty Ltd [2004] QSC 68 ; Australian Securities and Investments Commission v Preston [2005] FCA 1805 ; Australian Securities and Investments Commission v Atlantic 3 Financial (Aust) Pty Ltd [2006] QCA 540. 54 One case in which the possibility of a criminal proceeding was mentioned is Australian Securities and Investments Commission v Intertax Holdings Pty Ltd [2006] QSC 276. There ASIC sought a declaration that the defendants had contravened s 601ED(5) (when a managed investment scheme must be registered), s 727 (offering securities without a current disclosure document) and s 911A (need for an Australian financial services license). It also sought orders restraining them from continuing to engage in the allegedly unlawful conduct. Fryberg J refused to grant the declaration. He acknowledged there was jurisdiction to make the order but said that "[w]here the possibility of prosecution is open, it would, in my judgment, be contrary to the ordinary practice for the authority of this Court to be given to a declaration which, in substance, amounted to a declaration that a defendant had committed a crime. One should not make a declaration which might be falsified by a subsequent acquittal in proceedings between the same parties. " The judge did grant a restraining order as it was clear on the facts that the directors had aided their company's contraventions of the Corporations Act . 55 The other case is Australian Securities and Investments Commission v Fuelbanc Australia Ltd (2007) 25 ACLC 1230. The case involved a petrol payment scheme where subscribers, by paying a joining fee and making upfront contributions of cash and so-called "barter units", were provided with a debit card to which a specified amount was deposited every week to purchase petrol at participating service stations. ASIC alleged that the scheme constituted an unregistered management investment scheme in breach of s 601ED and that the defendants conducted an unlicensed financial services business in breach of s 911A. It sought an order that the scheme be wound-up as well as declarations, injunctions and other ancillary relief. The defendants did not contest the facts upon which ASIC based its claim. Nor did they oppose the orders sought. But because counsel for ASIC could not rule out the possibility of future criminal proceedings against the defendants he drew the court's attention to Intertax Holdings . Heerey J was not troubled by the case. He referred to the "consistent practice" in company cases of courts making declarations of criminal conduct, citing, in particular, Transphere , Sankey v Whitlam and Australian Softwood Forest among other cases. 56 I do not doubt that because the facts were not in dispute and the defendants were content for the case to go ahead an application of the traditional rules would not require the judge to stay the case. Yet Heerey J thought that Intertax Holdings, if good law, stood in his way. He expressed the view, however, that Intertax Holdings was wrongly decided. Intertax Holdings was different from the case that confronted Heerey J. In the former case the facts were in dispute and the defendants did not want the facts to be determined in a civil action in advance of a criminal trial. In addition, one must not lose sight of the fact that one object of the caution rule is to protect the defendant. 58 I would sum up the position as I see it as follows. The English and Australian authorities that warn of the dangers of a civil court becoming involved in criminal conduct continue to apply in an appropriate company case. The general rule in a company case is that a civil court will usually be the appropriate court to deal with a contravention of the Corporations Act . But the court should be wary of granting relief, including the grant of a declaration or an injunction, if the case is likely to end up before a criminal court. Ordinarily, a civil court should not intervene in those circumstances unless its failure to do so will result in irreparable injury. That strict rule need not be applied if the case involves undisputed facts and the issue raised gives rise to a question of pure law. Then a declaration can be a very useful remedy. As Barwick CJ said in Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19 ; (1972) 126 CLR 297, 305 that is the kind of case "which contributes enormously to the utility of the jurisdiction. First of all, a criminal prosecution is on the cards. Second, the facts are not agreed. On the contrary, if there is to be a trial, the Crown would be put to its proof on most issues and some of the "facts" to be asserted by the Crown are likely to be in contest. Third, there is potential for an adverse impact on the jury. The civil case will be decided on evidence that, for the most part, will not be available to the prosecutor in a criminal trial. Imagine what would happen if a jury discovers that a civil court has ruled that Mr Berlowitz' conduct is illegal. The judge presiding over the criminal trial will be obliged to tell the jury to leave that out of account. It is axiomatic in our courts that jurors can be trusted to leave out of their consideration things that they are instructed to leave out. Yet many regard this kind of instruction as little more than wishful thinking. Perhaps the jurors will have explained to them that the judge who made the ruling acted on evidence not before the jury and that in any event a lower standard of proof was required in the civil court. Whether those instructions will result in a fair criminal trial may be strongly doubted. Last, but by no means least, is the falsification point made by Fryberg J which, if it occurs, will bring the law into disrepute. 60 For the foregoing reasons I decline to entertain, on a final basis, the application for declaratory and injunctive relief against Mr Berlowitz. I am, however, prepared to stand the matter over until a final decision is taken as regards a criminal prosecution. If Mr Berlowitz is to be charged I would dismiss this proceeding against him and leave it to the criminal court to decide his fate. On the other hand, if the decision is made not to lay charges, this case can be brought back on. 61 I will hear the parties on what interlocutory orders, if any, should be made in the meantime. There will, in any event, be an order that ASIC pay the fifteenth defendant's costs as a result of the discontinuance of the claim against that company. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

unregistered managed investment scheme declaration of criminal conduct sought criminal prosecution in contemplation whether declaration should be made corporations

At all material times, that is from about 1 July 2005 to the early months of 2006, it was the proprietor of a jewellery retailer business trading under the name "Zamel's". In that time, it operated a chain of 69 jewellery stores: South Australia (14), Victoria (24), Western Australia (24), Tasmania (2) and the Australian Capital Territory (5). 2 In November 2005, the defendant caused to be published a pre-Christmas sale catalogue (the Christmas catalogue) advertising for sale during the period 24 November 2005 to 24 December 2005 (the sale period) various jewellery items. The Christmas catalogue was advertised by a variety of means, including the print and electronic media --- both television and radio --- in each State and Territory in which the defendant operated a jewellery retail store, as well as in each of its stores and on the internet. 3 The prosecutor has charged the defendant with 11 counts of making a false or misleading representation about the price of certain items of jewellery in the Christmas catalogue, contrary to s 75AZC(1)(g) of the Trade Practices Act 1975 (Cth) (the TP Act). Each count alleges that the defendant, by the Christmas catalogue, represented that a particular item of jewellery had been sold at the advertised "strike through" price, or that the purchase of that item of particular jewellery during the sale period would result in a saving to the purchaser of the difference between the price as specified in the Christmas catalogue (the sale price), and the strike through price. The prosecutor says that each of the representations was false or misleading because the highest price at which the particular item of jewellery was or had been sold within a substantial period prior to the Christmas catalogue being published was substantially less than the strike through price. 4 The defendant has pleaded not guilty to each of the counts. 5 It is common ground that each offence under s 75AZC(1) of the TP Act is an offence of strict liability: see s 75AZC(2). The prosecutor must prove its case on each count beyond reasonable doubt. 6 The prosecutor's evidence was not directly contested. In essence, it comprised affidavits of two of its officers relating to the course of the investigation into the alleged offences, the information gathered in the course of that investigation, including material provided by the defendant in response to a notice under s 155 of the TP Act, and the analysis of the information so acquired. That material was helpfully presented in a folder containing, separately with respect to each offence, the information which the prosecutor had gathered and the analysis of that information. Finally, the prosecutor tendered a Statement of Agreed Facts dated 24 October 2007 containing a recital of the facts which the prosecutor alleged and the defendant admitted. The defendant did not challenge any of that evidence. Nor did the defendant itself call any evidence. 7 I am satisfied that all the evidence adduced in relation to each offence is reliable. I make the findings of fact specified in [9]-[80] upon the basis of it. I make those findings of fact beyond reasonable doubt. Senior counsel for the defendant accepted that it was appropriate to do so. 8 The counts were all heard together. Some of the evidence related to all of the counts and some were referable only to a particular count. In the precise numbers of transactions referred to in those findings, there may be a variation or an inaccuracy of one or two items. If so, it will be only a minor counting error which would not in any way which affect the essence of those findings. 10 The Christmas catalogue was authorised for publication on 9 November 2005. Approximately 2.6 million catalogues were printed and distributed. The printed version was distributed to the public on 24 November 2005 in Mount Gambier, and on 26 and 27 November 2005 (a Saturday and Sunday) in every other State and Territory where the defendant operated stores and elsewhere within South Australia. The initial distribution in Mount Gambier was by a newspaper insert. It was otherwise circulated by a letterbox drop in every other State and Territory, and elsewhere in South Australia. The internet version of the Christmas catalogue was published on the defendant's website on 24 November 2005. On the same day, in-store displays promoting the sale period and sale prices were set up from 24 November 2005. 11 The Christmas catalogue advertised a large number of jewellery items for sale, including the items the subject of the 11 counts (the 11 jewellery items). The front page had the identification and name Zamel's in large print in its bottom left-hand corner, together with an apparently stylised logo. The name Zamel's also appeared in large print on page 9 and on page 12 of the Christmas catalogue. The right-hand margin of page 12, the final page, also had a list of the Zamel's stores throughout Australia, identified apparently by city or suburban locations, with telephone numbers, and with an asterisk to indicate which of those stores was open on Sundays. The bottom section of that column of information had the name Zamel's in large print, again with what is apparently the stylised logo and an internet address. 12 Each page of the Christmas catalogue had a number of jewellery items depicted, together with a brief description and a sale price. Some sale prices also had a weekly payment price (with an asterisk directing reader's attention to a note on that page that "conditions apply" and the note further directed the reader to the conditions which were set out at the bottom of page 2). In some instances, there was also additional description of the jewellery item or other text. I do not need to refer to it. Some items on pages 1, 7, 10, 11 and 12 had a price in large print together with a different or higher price in smaller print struck through by a diagonal line (the strike through price). 13 Each of the 11 jewellery items was included in those items where there was a sale price together with a comparison price, namely a strike through price. The sale price specified in the Christmas catalogue in respect of each item of jewellery was in larger print and coloured red. Where there was a strike through price, it was in smaller print and in black typing. The description of the particular jewellery items was also generally in smaller black print. 14 In every case where there was a sale price and a strike through price, the strike through price was higher than the Christmas sale price. 15 The items advertised for sale were available for sale in each of the defendant's stores with a ticketed price on each item. The ticketed prices were placed on each item in the head office of the defendant before the items were distributed to the stores. Generally, subject to certain unimportant variations apparent from the evidence, the ticketed price, where there was a strike through price, was also the strike through price for that item during the sale period. It had a sale price of $675, and a strike through price of $1,350. 17 The Count 1 item was offered for sale by the defendant at its stores from at least 4 November 2005. Prior to 24 November 2005, the ticketed price for the Count 1 item had been $995. It changed to $1,350 from the start of the sale period. Five of the Count 1 items had been sold in that period for prices ranging between $995 and $708. 18 During the sale period, 26 Count 1 items were sold, at various prices. There was only one sale above the strike through price, at $845. All other sales were at $675 (15 sales) or less: six at between $450 and $500, three at $573, and one at $650. 19 In the period of 22 weeks or so after the sale period, the Count 1 item was sold 21 times. All but one of those sales was at a price at or below the sale price, and all but that one sale were at $695 or in a few instances less than that amount. There was only one sale during that period that exceeded the sale price. It was at $995. 20 Although I have made findings as to the price at which the Count 1 item was sold after the sale period, based upon the information in the evidence as to sales subsequent to the sale period and up to about 22 April 2004, the defendant contended that such evidence was not relevant and that I should place no weight upon it. I shall address that contention below. It is convenient, however, in respect of such evidence on each count to record my findings on the matters raised by the prosecutor so that (if appropriate) I can have regard to them later in these reasons for judgment. That comment applies also to my findings in respect of sales subsequent to the sale period and up to about 22 April 2006 in respect of each of the 11 jewellery items. 21 Put shortly, the Count 1 item had only been offered for sale for a short time prior to the sale period. It had been sold five times, the highest price being $975. It had not been offered for sale at the strike through price until the sale period, and had never been sold at the strike through price. It had a sale price of $295, and a strike through price of $595. 23 The count 2 item was offered for sale by the defendant at its stores at least from 1 July 2005. Prior to 24 November 2005, it had been offered for sale at the ticketed price of $595, with the exception that it had been offered for sale at $295 and during the period covered by the August 2005 catalogue, namely 11 August to 4 September 2005, when it had a catalogue price of $295. 24 In the period from 1 July to 23 November 2005, there were 54 sales of the Count 2 item. They were all at $300 or less. Most were in the range $300 to $290, and there were also six sales in the range $200 to $192. 25 In the sale period, there were 49 sales of the Count 2 item. All but six were at $295, and the balance were at a lower sum, including at the lower end, two at $198. 26 In the period of 22 or so weeks following the Christmas sale period, and up to about 22 April 2006, there were 37 sales of the Count 2 item. With two exceptions (sales at $315 and $299), all were at $295 or less. There were nine sales at less than $295, including at the lower end, four sales between $200 and $197. 27 Hence, the Count 2 item prior to the sale period had never been sold at more than $300 or at or near the strike through price, and during the sale period its highest sale was at $315. It had a sale price of $99. It had a strike through price of $250. 29 The Count 3 item was also offered for sale by the defendant at its stores from at least 1 July 2005. Prior to 24 November 2005, it had been offered for sale at the ticketed price of $250 except for the period of the July 2005 catalogue, namely 14 July to 2 August 2005, when it was advertised with a strike out price of $195 and apparently ticketed at that price during that period and for some time thereafter. The ticketed price returned to $250 from about 5 October 2005 and remained at that level during the sale period and for the succeeding 22 or so weeks. 30 In the period from 1 July 2005 to 23 November 2005, there were 152 sales of the Count 3 item. Up to about 4 October 2005, the vast majority of those sales were at or in the range of $90 to $100, mainly $99, and the highest sale was $165 (one sale). There were 11 sales between $150 and $120, and 16 sales less than $100, including 13 sales less than $90 of which seven were between $33 and $40. In the period from 4 October to 23 November 2005, almost all sales were at $99, although there were two sales at $165, one sale at $135, and four sales between $125 and $115. 31 During the sale period, all but a few sales were at $99. There was one sale at $165, one sale at $100, three sales at $84 and one at $69. There were 144 sales in all during that period. 32 In the subsequent period to about 22 April 2005, the majority of the 91 sales were at $99, although there were 23 at less than $99 and 23 at more than $99. The sales above $99 included one sale at $169, the upper price, four sales at $165, three sales at $150, and sales at $139, $137, $125 (nine sales) and four sales between $100 and $113. Only four sales were less than $99 (ranging between $84 and $65). 33 The Count 3 item, therefore, had never been sold at or near the strike through price prior to the sale period, although its ticketed price for much of the time prior to the sale period was at the strike through price. It had a sale price of $85 and a strike through price of $225. 35 In the period from 1 July 2005 the ticketed price had been constant at $225 apart from a few unexplained exceptions at $195 and $150. Senior counsel for the defendant placed no particular significance on those exceptions. After 13 January 2006 and up to about 22 April 2006, the ticketed price varied between $225 and $250. 36 In the period from 1 July 2005 to 23 November 2005, there were 147 sales of the Count 4 item. They may be identified in ranges. At the upper end, there were seven sales between $149 and $145. There were 15 sales at between $135 and $111; four sales between $90 and $110; 71 sales at $85; 22 sales at $75; and six sales at the lower end between $55 and $72. 37 During the sale period, there were 241 sales of the Count 4 item. Almost all were at $85, although at the upper end there were three at $149 or $150, one at $113 and, one sale at $110. There were six sales at $89, seven sales at $70 to $80, and four sales at the lower end between $57 and $60. 38 In the succeeding 22 weeks or so, there were 99 sales of the Count 4 item, again mainly at $85. At the upper end, there was one sale at $190, four sales at $149 or $150, 17 sales at $110 to $130, 12 sales at $89 to $100, and three sales below $85 at $80, $72 and $57. 39 Hence, in the period leading up to the sale period, the highest price procured for the Count 4 item was $149. It had never been sold at the ticketed or strike through price of $225. It had a sale price of $75 and a strike through price of $150. 41 The ticketed price of the Count 5 item from 1 July 2005 to the sale period was $150, and in essence remained so through the whole of the relevant period. 42 In the period between 1 July 2005 and 23 November 2005, there were 24 sales of the Count 5 item. Twenty-one sales were at $69, one sale at $75, and in the upper range, two sales at $99. 43 In the sale period, there were 125 sales of the Count 5 item. There were 116 at $75. There was one sale above the sale price, namely at $79, and eight below the sale price ranging between $70 and $49. 44 Subsequent to the sale period, there were 95 sales of the Count 5 item. From 13 January 2006, the ticketed price became $165. However, those sales were mainly at $75. There were 18 sales above $75, with an upper price at $149 (one sale), seven sales at between $115 and $130, eight sales at between $110 and $90, and sales at $85 and $79. There were six sales less than $75, ranging between $50 and $69. 45 Again, the Count 5 item had never been sold at the strike through price prior to the sale period, or indeed during the sale period. The highest price paid for it prior to the sale period was $99. It had a sale price of $349 and a strike through price of $695. 47 The ticketed price for the Count 6 item was $695 during the relevant period (other than the period 6 to 25 October 2005 during the October 2005 catalogue period when it had a ticketed price and a strike through price of $750) although it appears that some ticketed prices remained after the October catalogue period at $750 for a time. 48 In the period 1 July 2005 to 23 November 2005, there were 70 sales of the Count 6 item. Most were in the range $340 to $350, although there were 11 at below that range, including eight below $300, the lowest of which was at $234. There were five sales above that range, at $425, $419, $393, $375 and $360. 49 During the sale period, there were 87 sales of the Count 6 item. All but seven were at $349 or $350. The seven other sales during that period were for less than $300, the lowest of which was at $234. 50 Following the sale period and until about 22 April 2006, there were a further 67 sales of the Count 6 item. Again, they were mainly in the range $345 to $350. There were seven sales greater than $350, with the upper price figures being $500 (one sale), $450 (two sales), $419 (one sale), $375 (two sales) and $361 (one sale). There were also eight sales at less than $345, with the lowest price being $234 (four sales) and four other sales in the range $249 to $314. The remainder were above $314, but less than $345. 51 The picture is similar to that concerning the other counts. The Count 6 item had never been sold at the strike through price. The highest price it had been sold at prior to the sale period was $425. The Count 7 item had a sale price of $2,650 and a ticketed price of $5,350. 53 The ticketed price of $5,350 existed through the whole of the relevant period, including the period of the August 2005 catalogue, namely 11 July to 4 September 2005, and the sale period. There were a few unexplained variations from that figure in the period to late October 2005. Again, senior counsel for the defendant made no comment about them. 54 In the period from 1 July 2005 to 23 November 2005, there were 30 sales of the Count 7 item. Twenty-one of them were in the range $2,500 to $2,700. There were three sales above $2,700: at $3,495, $2,950 and $2,838. There were six sales at less than $2,500, including five above $2,000, one at $989 and one at $1,847. 55 During the sale period, there were 24 sales of the Count 7 item. Again, 17 of them were in the range $2,500 to $2,700, and three above that range: $3,425 and $2,726 (two sales). There were also four sales below that range, including three at the lower level between $1,725 and $1,855. 56 Subsequent to the sale period, there were 33 sales of the Count 7 item. There were 18 sales in the range $2,500 to $2,700. There were five sales greater than $2,700, namely at $3,225, $3,200 and $2,838 (three sales). There were 10 sales at less than $2,500, including four below $2,000, the lowest of which was at $1,676. 57 Hence, as in the other counts, the Count 7 item had never been sold at the ticketed price or the strike through price. The highest price at which it had been sold was $3,495. It had a sale price of $550 and a strike through price of $1,125. The ticketed price, with few exceptions which were not explained (and of which nothing was made in submissions), remained during the relevant period at $1,125. 59 In the period 1 July 2005 to 23 November 2005, there were 32 Count 8 items sold. There were 24 sales between $450 and $550. There were three sales at greater than $550: $725 (two sales) and $562. There were five sales at less than $450, including two sales in the lower range at $334 and $389. 60 During the sale period, there were 12 sales of the Count 8 item. All except one were at $550, and the exception was at $525. 61 During the subsequent period to about 22 April 2006, the sales range was quite varied. There were four sales between $450 and $550. There were five sales at greater than $550: $700, $698 and about $560 (three sales). There were also four sales at less than $450, the lowest of which was at $358. 62 Thus, the Count 8 item also had never been sold at the ticketed price or the strike through price. The highest price at which it had been sold was $725. It had a sale price of $745 and a strike through price of $1,675. 64 The ticketed price of the Count 9 item throughout remained at $1,675, although for some reason there were several lesser ticketed prices from time to time. They were mainly at $1,200. They were not explained, and nothing was made of that variation in the course of submissions. 65 In the period 1 July 2005 to 23 November 2005, there were 34 sales of the Count 9 item. There were 20 sales between $600 and $750. There were 10 sales at greater than $750, including sales at $1,100, $1,000, $995, and seven sales between $775 and $840. There were also four sales at less than $600, in the range $521 to $561. 66 During the sale period, there were 17 sales of the Count 9 item. There were 10 sales between $600 and $750. There were seven sales in excess of $750, namely at $1,095, $896, $857, $851 and three in the range $840 to $765. 67 Subsequent to the sale period, there were 29 sales of the Count 9 item. There were 15 sales between $600 and $750. There were 12 sales in excess of $750. They were sales at $1,075, $1,005, $1,000, $970, $965 and seven sales between $800 and $845. In that period, there were two sales at less than $600: sales at $561 and $449. 68 In respect of the Count 9 item too, it had never been sold prior to the sale period at the ticketed or strike through price. Its highest sale price had been at $1,100. It had a sale price of $775 and a strike through price of $1,550. 70 The ticketed price during the relevant period remained at $1,550, although there were occasional ticketed prices at $1,900. Again, nothing was made of that apparent discrepancy. 71 During the period 1 July 2005 to 23 July 2005, there were 56 sales of the Count 10 item. There were 30 at $775. There were 13 sales in excess of $775. They were at $1,135, $1,000, $930 to $900 (five sales) and $899 to $800 (five sales). There were 13 less than the sale price, at $764 to $650 (seven sales), $580, $542 (four sales) and $519 (two sales). 72 During the sale period there were 61 sales of the Count 10 item. Most were at $775. There were six sales at a higher figure: $1,135, $1,050, and four sales between $965 and $779. There were also six sales at less than $775, the lowest of which was at $581. 73 Subsequent to the sale period, and to about 22 April 2006, the sale prices varied more. There were a number of sales at $775, and at $795. There were six sales at greater than $795, the highest of which was at $950. There were also three sales at less than $775, the lowest of which was at $557. 74 The Count 10 item had never been sold prior to the sale period at the ticketed price or at the strike through price. The highest price which had been paid for it up to the sale period was $1,135. It had a sale price of $169 and a strike through price of $350. 76 The ticketed price of the Count 11 item was generally $350 throughout the relevant period, although there were a few ticketed prices above that figure and some at $325 and some at $250. Again, those variations were not explained and nothing was made of them in the course of submissions. 77 In the period 1 July 2005 to 23 November 2005, there were 58 sales of the Count 11 item. There were 33 sales in the range $159 to $160. There were 17 sales in excess of $160, with the upper range having five sales between $250 and $205. There were also 12 sales between $170 and $200, including eight at $175. There were eight sales at less than $159, but only by a few dollars. 78 During the sale period, there were 79 sales of the Count 11 item. Most were at $169. There were 12 during that period in excess of $169: $285, $249, $237, five sales between $200 and $230 and four sales between $175 and $195. There were also five sales during that period at less than $169, ranging between $118 and $159. 79 Subsequent to the sale period and up to about 22 April 2006, there were 58 sales of the Count 11 item. Most were at $169. There were 21 sales above $169: $244, $230 to $220 (four sales), $210 to $200 (five sales), and $170 to $195 (11 sales). There were also 13 sales below $169, ranging between $113 and $160. 80 As in the other counts, the Count 11 item had never been sold prior to the sale period at the ticketed price or at the strike through price. The highest price paid for it up to the sale period had been $250. Curiously, during the sale period there was a higher price of $285 paid for it on one occasion. The prosecutor also alleges that each representation was false or misleading because the defendant had not sold each of the 11 jewellery items for more than the upper price which I have found separately in respect of each count earlier in these reasons. 83 It is also clear from the findings already made that the defendant had not sold any of the 11 jewellery items specified in each of the 11 counts respectively for the strike through price, or for more than the strike through price at any time from 1 July 2005 to the sale period (or in the case of count 1, from 4 November 2005 when the count 1 item was first offered for sale). 84 Because the burden of proof is proof beyond reasonable doubt, the defendant says that it is necessary that one or other of the two "inferences" referred to in [83] above must be the only rational inference that can be drawn from the representations in the Christmas catalogue. 85 The defendant contended that this case is a case concerning circumstantial evidence, because the Court as the finder of facts was asked to infer a further fact or facts from the basic fact or facts, namely what was said or conveyed by the defendant in the Christmas sale catalogue: cf Shephard v R [1990] HCA 56 ; (1990) 170 CLR 573 per Dawson J at 579. It then contended that the Christmas sale catalogue in the circumstances does not support either of the alleged "inferences" because neither of them should be drawn and because neither of them is the only rational inference which can be drawn from the Christmas catalogue. 86 I do not agree that what the Court is asked to do by reference to the content of the Christmas sale catalogue, in all the circumstances, is to infer a further fact or fact in issue. What it is asked to do is to determine whether the contents of the Christmas sale catalogue in respect of the 11 jewellery items conveyed either of the representations alleged, as those contents may be understood by the ordinary or reasonable members of the classes of prospective purchasers of jewellery from the defendant, and secondly whether any representation so made was false or misleading. 87 In substance, in this case, the issue is a straightforward one: it is whether the content of the Christmas sale catalogue, as relevant to the 11 counts, and in all the circumstances, conveys or would convey to ordinary or reasonable members of the public who may seek to acquire the 11 jewellery items from the defendant either of the two representations. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or course depend on all the circumstances. That passage was referred to with approval by the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ in Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ) at [102]-[103]. Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them. The nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should properly be categorized as misleading or deceptive or as likely to mislead or deceive. Again, that passage was cited with apparent approval by the High Court in Campomar at [104]. 90 Deane and Fitzgerald JJ in Taco at 202 pointed out the difficulty arising in a case involving s 52 of the TP Act (a civil claim alleging misleading or deceptive conduct) of determining whether the alleged conduct contains or conveys a misrepresentation, and of the significance to that question of evidence from one or more persons that they were in fact led into error. Their Honours said that the latter question, namely whether actual evidence of being misled is necessary, should be answered in the negative. Such evidence is helpful but not necessary. 91 Their Honours then provided certain guidance in considering and determining whether the suggested misrepresentation has been made, and is or is likely to be misleading or deceptive of the public. The first item of guidance was to identify the relevant section or sections of the public by reference to whom the question of whether conduct is, or is likely to be, misleading or deceptive falls to be tested. The second, having identified the relevant section of the public, was to consider the issue by reference to all who come within it, "including the astute and the gullible, the intelligent and the not so intelligent, the well educated as well as the poorly educated, men and women of various ages pursuing a variety of vocations". That quotation was adopted from the judgment of Lockhart J in Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 at 93. In Campomar , the High Court confirmed at [105] that the Court may well decline to regard as controlling the application of s 52 assumptions by persons whose reactions are "extreme or fanciful". Their Honours emphasised at [106] as had been said in Taco Bell at 201, that the question whether particular conduct causes confusion or wonderment, or is misleading or deceptive, cannot be substituted for the question whether the conduct answers the statutory description contained in the section under consideration. 93 The cases discussing the nature of misleading and deceptive conduct, generally in the context of s 52 of the TP Act, are of course not directed specifically to the context of Pt VC of the TP Act creating offences for specified false or misleading conduct. But there is no reason to consider that the concepts in Pt V as they are transposed to Pt VC are intended to be any different. The defendant did not make a submission to the contrary. I therefore think it is appropriate to apply those concepts to the extent to which they are applicable to the specific words of s 75AZC(1) generally, including s 75AZC(1)(g). Indeed, that is consistent with the explanatory memorandum to the Treasury Legislation Amendment (Application of Criminal Code) (No 1) (Cth) by which Pt VC came to be introduced into the TP Act in 2001. 94 Of course, in the case of offences under Pt VC, the prosecution must prove all the elements of the offence beyond reasonable doubt instead of on the balance of probabilities. 95 In this matter, in my judgment, the proper starting point is to refer to s 75AZC(1) of the Act. As noted above, in this matter, the fact that the defendant is a corporation engaged in trade or commerce is admitted. It is clear beyond reasonable doubt that the Christmas catalogue was issued in connection with the supply or possible supply of the 11 jewellery items, amongst many jewellery items. It is also clear that it was issued in connection with the promotion of the supply of the 11 jewellery items, amongst many jewellery items in the Christmas catalogue, because the Christmas catalogue itself was the promotion of the supply of those jewellery items. There is also no issue that the Christmas catalogue and its words and figures in the depictions was issued by the defendant. 97 The real issue therefore is whether the Christmas catalogue, by its words and figures and depictions, and in all the circumstances, in relation to each of the 11 counts, amounted to a representation about the price of each of the 11 jewellery items. The decision whether the words and figures and the depictions used make a representation about the price of the 11 jewellery items is a question to be decided objectively in all the circumstances. The second, but related issue, is whether any such representation was false or misleading. 98 As the parties agreed, at this point it is not necessary to deal with each count separately. 99 I am satisfied beyond reasonable doubt that the defendant made a representation about the price of each of the 11 jewellery items by its publication of the Christmas catalogue. The strike through price had a purpose. It was to convey to the consumer or potential consumer some relationship between the sale price and the strike through price. That is why the two prices appeared in juxtaposition. The presentation was to represent something about the catalogue sale price, that is about the sale price of the 11 jewellery items by reference to the strike through price. 100 The representation, in my judgment, was that by purchasing the several jewellery items in which there was a catalogue sale price and a strike through price, there would be a saving of the difference between the catalogue sale price and the strike through price. It was to encourage the purchase of the 11 jewellery items at the catalogue sale price, by representing to the consumer or potential consumer that during the sale period, the consumer would be saving a difference between the catalogue sale price and the strike through price. I reach that conclusion beyond reasonable doubt. In doing so, I have taken into account the nature of the defendant's business, its price ticketing processes (including as explained in the material it provided to the prosecutor in response to a s 155 notice under the TP Act), the general presentation of the Christmas catalogue, and its specific contents with respect to the 11 jewellery items. 101 The defendant contended that, for the prosecution to succeed, the alleged and admitted conduct had to amount to the only rational understanding or conclusion which could be reached about the meaning of the relevant parts of the Christmas catalogue. Hence, it was argued, if a rational consumer could reach a different understanding of the effect of the relevant parts of the Christmas catalogue in all the circumstances, the prosecution case would not have been proved beyond reasonable doubt. 102 I reject that contention. It does not follow from the wording of s 75AZC(1)(g) of the TP Act that it must be shown that every consumer who read that material drew the same conclusion as to its precise meaning and effect. Section 75AZC(1)(g) makes it an offence if the false or misleading representation was made. The fact that most or many consumers understood the representation in the way I have identified, but that some may not have done so, does not mean that the representation was not made at all. The representation was still made. 103 The appropriate question is whether ordinary or reasonable members of the classes of prospective purchasers of the 11 jewellery items would understand the relevant contents of the Christmas catalogue as conveying the representation which I have found to have been made. 104 Of course, upon the whole of the evidence, clearly not all ordinary or reasonable prospective purchasers of the 11 jewellery items necessarily would have so understood that material. The price range at which the 11 jewellery items had been sold by the defendant prior to and during the sale period demonstrates that. There are obviously ordinary and reasonable members of the public among the potential purchasers of the defendant's jewellery who did not read or understand the Christmas catalogue. That is evident from the sales during the sale period above the sale price. There are also obviously ordinary and reasonable members of the public among the potential purchasers of the defendant's jewellery who are aware that, notwithstanding a ticketed price, they can negotiate a lower price. That may in fact flow from the sales strategy of the defendant on a one-to-one basis with a particular potential purchaser. Even during the sale period, as evidenced by sales below the sale price, there were purchasers of the 11 jewellery items who did not accept the sale price as the price to be paid but as a basis for further negotiation. The defendant described its potential purchasers as having "a discount culture", and that the defendant operated in a "discount jewellery market" where its sales staff are encouraged to offer competitive price discounts "if that is what is required to secure a sale". 105 However, such considerations do not detract from my conclusion that there was a group of ordinary and reasonable members of prospective purchasers of the 11 jewellery items to whom the representations I have found were made about the 11 jewellery items. Not every potential purchaser has "a discount culture" or would understand that the strike through price had no real relevance to the decision to purchase one or more of the 11 jewellery items. There was a significant percentage of sales of each of the 11 jewellery items at the sale price during the sale period, and generally a greater intensity of sales of each of the 11 jewellery items during the sale period (although the short pre-sale period of the Count 1 item does not enable such a picture to be drawn) than in the period from 1 July 2005 leading up to the sale period. The defendant's own acknowledgment was that it encouraged departure from a price if necessary to secure a sale, and obviously its sales personnel would accept a sale at higher than the sale price during the sale period if a potential purchaser was unaware of the sale price. 106 I remain of the firm view, notwithstanding the defendant's contentions referred to above, that in all the circumstances the representation which I have found to have been made was made to a significant section of the ordinary and reasonable consumers who potentially would or might purchase one or more of the 11 jewellery items. 107 The defendant did not have any onus of demonstrating that an understanding of the Christmas catalogue consistent with innocence was available: see Knight v R [1992] HCA 56 ; (1992) 175 CLR 495 at 503. The prosecution had to prove beyond reasonable doubt that the false or misleading representations were made as it alleged. In my judgment, for the reasons referred to, the prosecution has proved that. 108 I have considered whether there were other reasonably possible "explanations consistent with innocence" (words used by the defendant in its written submission) which could be drawn from the relevant sections of the Christmas catalogue. For the reasons I have given, the fact that there may have been other meanings drawn by some consumers, with different degrees of knowledge or understanding, does not diminish my conclusion beyond reasonable doubt that the alleged representation was made. As I have said, s 75AZC(1) does not require that the representation must be so understood by every consumer or potential consumer. 109 The defendant suggested that the strike out price might have conveyed the defendant's previous or normal ticketed price, or a competitor's price, or the value of the relevant item of jewellery. For the reasons already given, even if some consumers or potential consumers might reasonably have so understood what was represented by the relevant parts of the Christmas catalogue in all the circumstances, that would not mean that the representation which I have identified was not made. 110 The first of the defendant's three suggested alternative hypotheses, namely the previous or normal ticketed price, as to the meaning of the relevant parts of the Christmas catalogue in any event does not diminish my conclusion. The defendant used the expression its "own previous or normal" price. But if that was the comparator expressed by the strike through price, that is a step which also underlies my view as to the meaning of the relevant parts of the Christmas catalogue. It fortifies, by the two prices in juxtaposition, what I have found the representation to have been. The evidence shows that the defendant's strike through price had never been its actual previous price in respect of any of the items and had never been its normal previous price. The use of the term "ticketed" price also emphasises the contrast between the ticketed price and the sale price, but for the very reason --- as I have found --- to represent the extent of the available saving if the particular item of jewellery was purchased during the sale period. 111 I am also satisfied beyond reasonable doubt, not only that the representation which I have found was made, but also on the evidence that the relevant parts of the Christmas catalogue did not refer to a competitor's price for items identical to or very similar to the 11 jewellery items. There is nothing in the Christmas catalogue which would lend any support to that suggestion. Nor is there anything in the evidence which would reasonably be taken to suggest that, either in isolation or taken in conjunction with the content of the Christmas sale catalogue generally, the strike through price was a competitor's price. 112 I am also satisfied beyond reasonable doubt that the relevant parts of the Christmas sale catalogue did not convey a sale price and, by the strike through price, compare it to the value of the particular price of jewellery. Again, there is nothing in the Christmas catalogue which could reasonably be taken to suggest that. Nor is there anything in the evidence which could reasonably be taken to suggest that, either taken in isolation or taken in conjunction with the Christmas sale catalogue. 113 I have not discussed any other reasonably available meaning of the relevant parts of the Christmas sale catalogue. That is simply because I have not discerned any. The defendant did not suggest any. 114 I also conclude, for obvious reasons, that each of the representations which I have found made in the relevant parts of the Christmas sale catalogue with respect to each of the 11 jewellery items, in all the circumstances, was false or misleading. The primary findings of fact set out above are sufficient to demonstrate that each of the representations was false or misleading because, having regard to the previous sales of each of the 11 jewellery items, the purchase of any of those 11 items during the sale period would not result in a saving to the purchaser of the difference between the sale price and the strike through price. In no case had the defendant sold any of those items in the period from 1 July 2005 up to the sale period (in the case of the count 1 item, from 4 November 2005) at anywhere near the strike through price. 115 The defendant did not submit that, if I was satisfied that the representation pleaded was made out, it was not false or misleading as to price. 116 On my approach, I do not regard the evidence of sales of the 11 jewellery items after the sale period is probative of the prosecution case. I agree with the defendant's submission in that regard: cf Phennig v R [1995] HCA 7 ; (1995) 182 CLR 461. I have not had regard to that evidence or any findings based on it, although I have recorded my findings on it earlier in these reasons. 117 I have also not had regard to the Guidelines issued by the prosecutor, whether by News Releases or by formal Guidelines. That material might be relevant to penalty, although that is a matter to be considered later, but I do not see how it can be relevant to whether the defendant contravened s 75AZC(1)(g) of the TP Act. 118 For the sake of completeness, I record that I have also considered the cases under s 53(e) of the TP Act to which I was referred. Each was decided on its own particular facts and is not, in my view, of direct assistance in deciding whether the prosecutor has made out the case. That depended on whether, judged objectively, the representations were made by the defendant in all the circumstances by the relevant parts of the Christmas catalogue. However, I mention briefly those cases: Trade Practices Commission v Cue Design Pty Ltd (1996) 85 ACrim Rep 500 ( Cue Design ) and Australian Competition and Consumer Commission v Allans Music Group Pty Ltd [2002] FCA 1552 ( Allans ). Each of those cases concerned a prosecution under s 79(1) of the TP Act for a contravention of s 53(e) of that Act (that is the regime which existed prior to the introduction of Pt VC). Each involved pricing representations. In the case of Cue Designs , there was a price tag with a higher price which was crossed out together with a representation as to a lower price in relation to items of apparel. It was found that a reasonable person would be led to believe that the items of apparel had previously been offered for sale at the higher price marked on the tag and were now being offered for sale at the lower price. It is therefore somewhat different from the present case where the relevant allegation is that the strike through price was the price at which the particular items of jewellery might be purchased other than during the sale period, and so provided an indication of the saving available during the sale period. In Cue Design the higher price had not previously been the price at which the items of apparel had been offered for sale. In any event, in that case there was a guilty plea to the charges and the case concerned penalty. Similarly in Allans : the representation was that there was a narrow window of opportunity in the Christmas lead up period when bargains of a very substantial nature could be obtained on Allans' musical goods by paying a much lower price in that period than that which had been paid in circumstances where a purchase was made before the beginning of that period. In other words, the representation in that case was as to what had previously been paid or was expected to be paid by reason of the crossed through price. Again, a plea of guilty was made in relation to those charges. Finally, I note Ducret v Chaudhiry's Oriental Carpet Palace Pty Ltd (1987) 76 ALR 182. It was also a prosecution under s 79 for contraventions of s 53(e) of the TP Act. The prosecution was summarily dismissed. In that case, the price comparators were viewed in the context of extensive evidence to which the primary judge referred, so that upon the whole of the evidence the contrasting price was not misleading or deceptive. It was a decision on its particular facts also. 120 Senior counsel for the prosecutor, with the apparent concurrence of senior counsel for the defendant, requested that, if I were to reach that conclusion on each count or on any count, I should simply record my finding of guilt and then adjourn the matter to a date to be fixed for the parties to make submissions as to any other appropriate orders. I will adopt that course. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

prosecution under s 75azc in pt vc of the trade practices act 1974 (cth) whether corporation made a false or misleading representation about the price of goods advertising of jewellery in catalogue with stated price and strike through price jewellery previously ticketed at strike through price but never sold at or near strike through price whether false or misleading held that catalogue represented to a group of ordinary and reasonable potential consumers that, in purchasing the jewellery items, there would be a saving of the difference between the catalogue sale price and the strike through price defendant found guilty prosecution under s 75azc in pt vc of the trade practices act 1974 (cth) whether necessary for prosecution to prove that no reasonable consumer could reasonably have understood representation in a way that was not false or misleading consideration of usefulness of cases concerning the analogues of the sections in pt vc in pt v of the act, particularly s 53(3) held that s 75azc did not require the prosecution to prove that trade practices trade practices

It also sought the appointment of receivers to the property of certain companies in the Group. The application was brought under s 1323 of the Corporations Act 2001 (Cth) (the Act). On 20 April 2006 orders were made that receivers be appointed to the property of each of the defendants other than Bowesco Pty Ltd which already had a receiver appointed under an existing security. Orders were also made for the disclosure by each of the first to fourth defendants of their assets and liabilities, bank accounts, debtors and property, real and personal. Orders in relation to the fifth to eighth defendants required like disclosure of their assets and liabilities. Similar orders were made later in respect of the ninth defendant. 2 ASIC now seeks to amend the receiver orders in respect of the first, third, fourth and fifth to ninth defendants. The variations seek, inter alia, to bring into the scope of receiver orders property held by a third party as trustee for any trust in which the defendant is a beneficiary. Orders were also made defining the powers of the receivers. On 8 June 2006 an order was made by consent which, in effect, severed the orders against the second defendant from those made against the other defendants and varied those orders in terms which included those now sought by ASIC against the first, third, fourth and fifth to ninth defendants. 4 The question of the variation of orders otherwise, and specifically in relation to the property of trusts of which the defendants were beneficiaries, was stood over for argument to 15 June 2006. 5 Written submissions were filed and oral argument presented in relation to the proposed variations and judgment reserved until today. For the reasons that follow I am prepared to vary the orders by extending the scope of the definitions of 'Individual Property' and 'Corporate Property' as requested by ASIC save for par 3.6 which relates to property held by trustees and, in the case of individual defendants, par 3.7 which relates to properties held by third parties on behalf of a superannuation fund in which the individual defendant is a beneficiary. I am prepared to make more specific orders than that sought in par 3.6 directed to the class of discretionary trusts in which, because the trustee is effectively the alter ego of the relevant beneficiary or otherwise subject to his or its effective control, the beneficiary has at least a contingent interest within the meaning of that term as used in the definition of 'property' in s 9 of the Act. It appears, on the face of the materials presently before me, that the trusts in which the third and fourth defendants are named as beneficiaries fall within that general description. I will make orders of the kind sought in par 3.7 of the proposed orders for individual defendants which relate to superannuation funds subject to satisfaction about the nature of the individual defendant's interest in the relevant superannuation fund. 6 I am also prepared to make ancillary orders under s 23 of the Federal Court of Australia Act 1976 (Cth) to authorise receivers to obtain necessary information from the defendants and from the trustee of any trust of which a defendant is a beneficiary, inclusive of discretionary trusts, so that a decision may be made whether to extend the receiver orders to the property of that trust. 7 I made orders yesterday in anticipation of the publication of these reasons today. In publishing the reasons I slightly amend the terms of order 1 to ensure that it draws an appropriate distinction between provisions of the orders relevant to the Individual Defendants and those relevant to the Corporate Defendants. Until 20 October 2006 or further order, Oren Zohar, Brian McMaster and Mark Korda of KordaMentha, Chartered Accountants, of Level 11, 37 St George's Terrace, Perth be appointed jointly and severally as receivers (the 'Individual Receivers') to all property (the 'Individual Property') whether within Australia or overseas, of the Individual Defendant. 10 The powers of the receivers under the proposed orders are the same as those set out in the order made on 20 April 2006 with the addition of the power to appoint a lawyer, accountant or other professionally qualified person to assist the individual receivers. There have been other variations to the terms of the orders made on 20 April 2006 which are not material for present purposes. 11 The variations to the Corporate Receiver Orders proposed by ASIC contain paragraphs identical to those set out in pars 3.1 to 3.6 of the Individual Receiver Orders. There is no equivalent of par 3.7 relating to superannuation funds in the orders proposed for the corporate defendants. Paragraph 3.7 of the proposed Corporate Receiver Orders is the equivalent of par 3.9 of the Individual Receiver Orders. Does the Court, on an application under s 1323 of the Act, have power, under that section or s 23 of the Federal Court of Australia Act , to appoint a receiver to property held by a third party on a trust, whether discretionary or otherwise, of which the relevant person is a beneficiary? 2. If the answer to question 1 is in the affirmative, in whole or in part, should the Court make the orders sought in the present case? It does not authorise the appointment of a receiver of the property of third parties other than the relevant person. However, if the relevant person has an interest in property of a third party and that interest falls within the definition of 'property' in s 9 of the Act, then a receiver appointed under s 1323 may be appointed a receiver of that interest. Paragraphs 3.3 and 3.4 of the proposed definitions of Individual Property and Corporate Property in the orders sought by ASIC cover property in that category. 17 A particular example of the general case of third party property in which the relevant person has an interest arises where property is held on a trust for that person. The relevant person thereby has an equitable estate or interest in the property which estate or interest is itself property for the purpose of s 1323. That flows from the definition in s 9 and its application to equitable estates and interests. On an authorised sale of a trust investment, the beneficiaries' proprietary interests in the investment are overreached; that is to say, they are automatically transferred from the investment which is sold to the proceeds of sale and any new investment acquired with them. ... The beneficiaries' interests in the new investment are exactly the same as their interest in the old. They have a continuing beneficial interest which persists in the substitute. That case is covered in par 3.7 of the proposed expanded definition of 'Individual Property'. The conclusion that it falls within the simple case of an equitable interest in a trust fund must be subject to evidence about the character of the trust upon which the superannuation fund is administered and the interests of the relevant person identified by reference to its terms. 18 If the relevant person is a trustee of property for another, either alone or jointly with one or more third parties, then the legal interest in that property, held by the relevant person, is amenable to control by receivers under s 1323(1)(h) of the Act. Section 1323(2A) puts that proposition beyond doubt. Property of that character is covered by pars 3.2 and 3.5 of the proposed orders. 19 A less straightforward question arises when the relevant person is a beneficiary of a discretionary trust. The term 'discretionary trust' has been said in the High Court to bear a meaning 'disclosed by a consideration of usage rather than doctrine' and to be used in a way that is 'descriptive rather than normative'. It has 'no fixed meaning and is used to describe particular features of certain express trusts' --- Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4 ; (1998) 192 CLR 226 at [8] . 20 Gummow J described as 'purely discretionary' a trust in which income and capital can be withheld altogether. This kind of trust fits within the classification of non-exhaustive discretionary trusts discussed below. A trust will not be purely discretionary '... where the donee of the power of selection had a discretion only as to the time or method of making payments to the beneficiaries'. This corresponds with the category of exhaustive discretionary trust. 21 As appears from the preceding discussion discretionary trusts take a variety of forms. The trustee may be required by the terms of the trust deed to distribute the entire income at specified intervals. This has been called 'an exhaustive discretionary trust' --- Thomas G and Hudson A, The Law of Trusts, (Oxford University Press, 2004) at 184 ff. On the other hand a discretionary trust is called 'non-exhaustive' when the trustee has a discretion to distribute any part or perhaps none of the income of the trust as he thinks fit. Similar classifications would apply according to the basis upon which the corpus of a trust is distributed. The beneficiaries may form a defined and closed class of persons. Alternatively, the class may be open. By way of example of the latter case, a discretionary trust intended primarily to benefit a family may nevertheless name as beneficiaries not only its living members, but also relatives born or yet to be born into the extended family, charities and other classes of entity. The naming of these species of discretionary trusts, like the term 'discretionary trust' itself, is a matter of taxonomical convenience rather than expository of principle. But when the trustees have no discretion as to the amount of the fund to be applied, the fact that the trustees have a discretion as to the method in which the whole of the fund shall be applied for the benefit of the particular person does not prevent that particular person from coming and saying: "Hand over the fund to me". It was an exhaustive discretionary trust with a closed class comprising the three named beneficiaries. The three beneficiaries collectively mortgaged their share and interest under the will. The Court of Appeal rejected an argument that there was no interest to be mortgaged. The disposition was described by Swinfen Eady MR as '... an absolute gift between the three individuals who are of age and sui juris'. They had all concurred '... in assigning by way of mortgage their interest'. Duke LJ and Eve J agreed. 24 The Master of the Rolls in Re Nelson distinguished the case of Re Coleman [1888] 39 Ch D 443 which was relied upon by the appellants. In Re Coleman the trustees had power to apply the income of a trust fund for the benefit of a class or any one of them to the exclusion of the others. One of the beneficiaries assigned his share and claimed unsuccessfully that an appropriate portion, one quarter of the income, should be paid to his assignee. That is quite a different case from the present case, where all the members of the class have assigned their shares to the mortgagees. Although, as Lord Reid pointed out in Gartside v IRC, two or more persons cannot have a single right unless they hold it jointly or in common, and the beneficiaries of a discretionary trust do not have such a right --- indeed, they are in competition with each other and what the trustees give to one is his alone --- it remains the case that, under the principle laid down in Saunders v Vautier [(1841) Cr & Ph 240], such beneficiaries, as the persons for whom or in whose favour alone the trust property may be applied have a right to terminate the trust and deal with the property as if it were their own. There all the beneficiaries for the time being, even acting collectively, cannot demand payment of the trust fund to them or direct its application on their behalf. The same is true in any case when the class of beneficiaries is not closed. This is true even if the discretionary trust only has one beneficiary ( Re Weirs Settlement Trusts [1971] Ch 145). A principal issue in the case was whether the potential beneficiaries of the trust had 'interests in possession' in the trust fund for estate duty purposes. The House of Lords rejected that contention. The case involved contempt proceedings for alleged breach of a mareva injunction. One of the persons bound by the injunction exercised his powers as appointor under a trust deed to make his son guardian of the trust and removed himself as appointor. His son then removed the other trustee, Anchorage, and appointed a company with which he was associated as trustee. The new trustee, with his consent and that of his wife, declared that they be excluded as general beneficiaries. The question was whether these transactions amounted to a breach of the terms of the injunction. The Full Court held that a beneficiary of a trust of the type then in question did not have a proprietary interest in any particular 'assets' of the trust fund or in the trust fund as a whole. The expectancy which a beneficiary has that the trustee might appoint capital of the trust fund in his or her favour lacked the requisite aspect of 'value' to enable it to be regarded as an asset. The Trust Deed confers on a trustee a mere power. It is a power of very wide import. The trustee can determine whether an individual beneficiary is to benefit at all, and if so, in what way, from the exercise of the power in his or her favour. In this sense, the beneficiary has nothing more than an expectancy. The trustee has a duty to administer the trust bona fide having regard to the purpose for which it was established. In my opinion, however, the observations of Owen J have a more general application. The definition and its various elements should not therefore be narrowly construed. Nevertheless, in my opinion, in the ordinary case the beneficiary of a discretionary trust, other than perhaps the sole beneficiary of an exhaustive trust, does not have an equitable interest in the trust income or property which would fall within even the most generous definition of 'property' in s 9 of the Act and be amenable to control by receivers under s 1323. I distinguish the 'ordinary case' from the case in which the beneficiary effectively controls the trustee's power of selection. Then there is something which is akin to a proprietary interest in the beneficiary. 30 I accept that there are some rights enjoyed, even by the beneficiaries of a non-exhaustive discretionary trust with an open class of beneficiaries. They include the right to inspect the trust documents --- Re Londonderry's Settlement [1965] Ch 918 and the right to require the trustee to provide information about management of the trust fund --- Spellson v George (1987) 11 NSWLR 300; Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSWLR 405. There is also a right to enforce the proper management of the trust by the trustee --- Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694; Re Atkinson [1971] VR 613. 31 ASIC submitted that the beneficiary under a discretionary trust has a 'contingent interest' within s 9 of the Act. It was submitted that the Court could make the orders sought on the basis that any of the defendants who is a beneficiary of a discretionary trust has a 'contingent interest' in the property of the trust which therefore constitutes property as defined in s 9 of the Act. 32 ASIC submitted that a contingent interest in property equates to a proprietary interest. It cited Craig v Federal Commissioner of Taxation [1945] HCA 1 ; (1945) 70 CLR 441. That case concerned the application of s 8(4) of the Estate Duty Assessment Act 1914 (Cth). The Act levied estate duty on the value of the estate of deceased persons. Included in the property brought into the estate for the purposes of the assessment of estate duty was property 'comprised in a settlement made by the deceased person under which he had any interest of any kind for his life...'. McTiernan J, at 454, observed that the word is not a technical term and that the law does not give it the same specific application in all contexts in which it is used. A contingent interest, however, was contrasted with the category of 'bare possibilities and expectations'. Williams J, at 456, made observations to similar effect. 34 A contingent interest may be described broadly as the possibility that a right of a proprietary character will come into existence at a future time if some event occurs. Irrevocable appointments were made by the trustees in favour of two of the settlor's children contingent on their surviving for the period of one day a person whose death should occur on 29 November 1975 and who would be the first of the persons dying on that date to be named in the deaths' column on the back page of The Times published on Monday, 1 December 1975. The case went off, in the Court of Appeal, on the basis that the true legal effect of the appointments caused the interests conferred on the beneficiaries to vest only in the event of their surviving publication of the relevant edition of the newspaper. The appointments did not contain any genuine contingency of surviving another person by a specified period. If there is no real possibility that it will not happen, so that it is as good as certain that it will, it is a contingency without reality and substance and no contingency at all. But a real possibility is not the same thing as a probability. It may be highly improbable that an event will happen, but there can still be a real possibility that it will. If there is that possibility, however remote it may be, the contingency is one of reality and substance. I am inclined to think that a beneficiary in such a case, at arms length from the trustee, does not have a 'contingent interest' but rather an expectancy or mere possibility of a distribution. In some discretionary trusts, and there is an example among those of which Mr Beck is a beneficiary, charities as a class are included in the class of beneficiaries. It could hardly be said that every charity in Australia has thereby acquired a contingent interest in that trust. On the other hand, where a discretionary trust is controlled by a trustee who is in truth the alter ego of a beneficiary, then at the very least a contingent interest may be identified because, to use the words of Nourse J, 'it is as good as certain' that the beneficiary will receive the benefits of distributions either of income or capital or both. 37 As discussed earlier, the beneficiary who effectively controls the trustee's power of selection because he is the trustee or one of them and/or has the power to appoint a new trustee has something approaching a general power and the ownership of the trust property. There are cases in the Family Law jurisdiction which have dealt with like circumstance. 38 The Full Court of the Family Court of Australia in In the Marriage of Ashton (1986) 11 Fam LR 457 considered a case in which the husband was appointor of a family trust. He had the power to remove and appoint the trustee and could appoint himself. The trustee had the power to alter the terms of the trust at will. He was not a beneficiary of the trust but had received income from it. He was found to be 'in full control of the assets of the trust'. There were 'good grounds for saying the trust is no more than the husband's alter ego'. The trial judge had found that the reality in that case was that no person other than the husband had any real interest in the property or income of the trust except at the will of the husband. The husband had the sole power of appointment of the trustee which was a creature under his control and he was a beneficiary to whom the trustee could make payments exclusive of other beneficiaries as the husband saw fit. It is not necessary here to traverse them all as both these defendants have been in negotiation with ASIC about the proposed variations to the orders and they will consider these reasons in those negotiations before final orders affecting their trusts are made. 41 By way of example, Mr Beck is a beneficiary of the Agribusiness Annuity Trust of which Eagle Bluff Nominees Pty Ltd is trustee. He is the director and secretary of that trustee company. He is the original appointor under the trust and his wife, Anne Beck, the current appointor. The trustee has a wide discretion including the power to prefer one or other beneficiary to the total exclusion of any other beneficiary. Mr Beck would appear, through his trustee company, to have effective control of the assets of the trust. At the very least he has a contingent interest in the sense used earlier. His interest would appear to amount to effective ownership of the trust property. The property of that trust is, in my opinion, amenable to control by the receivers under s 1323. 42 The Beck Maritime Trust has Mr Beck as current trustee and himself, along with members of his family and other entities including charities, as an open class of beneficiaries. He is limited to distributing no more than 39 per cent of the income or capital to any beneficiary without a unanimous resolution from the appointor authorising the distribution. The current appointor is his wife. In my opinion, this trust gives Mr Beck at least a contingent interest in the whole of the trust property and what amounts to ownership of at least 39 per cent of it. 43 The Beck Unit Trust comprises 23 properties. The only unit holder is Hesterbrook Pty Ltd, which owns its units as trustee of the Beck Superannuation Fund. Mr Beck and his wife are directors and secretary of Hesterbrook and he beneficially owns all of its capital. As ASIC submitted, he is able to exercise complete control over the property of the Beck Unit Trust. 44 Mr Dixon, the fourth defendant, is also a beneficiary of a number of trusts. By way of example he is appointor of the Awarra Family Trust. He has power to remove and appoint new trustees. He is one of an open class of beneficiaries. The trustee has evidently every power as if it were the absolute owner of the trust fund. On this basis, and having regard to the principles previously discussed, he has at least a contingent interest in the property of the trust if not a general power which approaches ownership. 45 It is not necessary to go further in considering all of the trusts of which the third and fourth defendants are beneficiaries. It is sufficient to say that the property subject to those trusts appears, for the most part, to be amenable to control by the receivers appointed under s 1323. 46 I am not satisfied that I have the power under s 1323(1)(h) to extend the scope of the property covered by the Individual Receiver Orders to the very general class defined in par 3.6 of the proposed varied definitions of Individual Property and Corporate Property. I will, however, consider a proposal for orders to be made in relation to trusts of which the relevant defendant is the effective controller, thereby enjoying at least a contingent interest, if not effective ownership, of the trust property. This will require specification of the trusts to be affected. As to non-discretionary trusts where the beneficiaries have an equitable interest in the property of the trust, such interests are already covered adequately by the receiver orders that have been made. 47 I do not consider it appropriate to resort to s 23 of the Federal Court Act to extend the scope of the receiver orders in a way for which the primary power does not provide. Section 23 may be used to make orders to ensure that orders made under s 1323 are effective, but not to stretch the limits of the power there conferred. I would be prepared to make orders under s 23 authorising the receivers to require the defendants to provide information necessary to identify any trusts in which they are beneficiaries. I will also be prepared to make orders requiring such defendants to provide, by exercising their rights as beneficiaries, information to which they are entitled relating to the trust documents and the management of the trusts, including their distribution history. I would also authorise the receivers to obtain information from the trustees of any trust of which the defendant is a beneficiary. Such information could extend to the terms of the trust, the classes of its beneficiaries and its distribution history. I will, however, make orders with respect to particular trusts in accordance with the principles outlined above. As to the extension in par 3.7 upon a specification of a particular superannuation fund and the nature of the individual defendant's interest, I will be prepared to make an order in the terms sought by reference to the particular fund identified. I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

appointment of receivers to property of directors and officers of corporate group pending investigation by australian securities and investments commission extension of orders to property held on trust by third parties whether power to make receiver orders extends to property held under discretionary trust nature of beneficiary interest in discretionary trusts whether contingent interests exhaustive discretionary trusts closed class of beneficiaries non-exhaustive discretionary trusts open class of beneficiaries scope of power to make orders under s 1323 of the corporations act 2001 (cth) and s 23 of the federal court of australia act 1976 (cth) [2006] fca 814 corporations

The decision he seeks leave to appeal is that of Greenwood J delivered on 3 August 2009. In that decision, Greenwood J acting under s 25(2)(a) of the Federal Court of Australia Act 1976 (Cth), refused Mr Spencer leave to act as a director of the company Neo Rock Pty Ltd for the purpose of making an application to the Court for leave to appeal and his application for leave to appeal the decision of Logan J delivered on 12 February 2009. In his decision, Logan J ordered that the company Neo Rock Pty Ltd be wound up and an official liquidator be appointed. In Reid v Nairn (1985) 60 ALR 419 the Full Court (Fox, Forster and McGregor JJ) held that there is no appeal from a decision of a single judge refusing or granting leave to appeal in these circumstances. This appeared to be a complaint that he was denied procedural fairness. In his decision, Spencer v Neo Rock Pty Ltd [2009] FCA 845 at [5] , Greenwood J set out the circumstances surrounding the hearing before him on 3 August 2009. He noted that, on the day before the hearing, Mr Spencer wrote a letter to the Court seeking, among other things, an adjournment of the matter for a week or so. I have no objection to that course. As a result, he says he was adversely affected by the fact that Greenwood J proceeded to deal with the application for leave to appeal, because he was not present and able to put his case in person and act as a contradictor. I note in passing that Ms Walker has pointed out that, in the lead up to the hearing on 3 August 2009, directions were given that made it clear that there would be no further adjournment of the matter beyond 3 August 2009. Even if I were to accept that Mr Spencer was acting under a misapprehension when he stated that he agreed to the court dealing with the matter on 3 August in his absence, I do not consider his absence on 3 August caused him any prejudice in the sense that he was denied procedural fairness. This is so because Greenwood J recorded (at [6] of his decision) he had before him written submissions by Mr Spencer directed to the issues involved in both his applications for leave under s 471A of the Act and for leave to appeal. Based on the latter submissions, Greenwood J considered the decision of Logan J, particularly his approach to s 459S of the Act and the authorities relating to that, and concluded that Logan J was not in error in the approach he took to s 459S: at [10] --- [12]. Having reached that conclusion, Greenwood J then considered Mr Spencer's written submissions directed to the application of that section in the circumstances, in particular, as to whether or not the company had established that it was solvent in accordance with the approach Logan J had taken to s 459S of the Act. At [17] to [19] of his decision, Greenwood J dealt with each of Mr Spencer's submissions in turn on this issue, and rejected them. In summary, he concluded that there was no material before the Court which would go to establish that the company was, indeed, solvent, as Mr Spencer claimed. He, therefore, refused both the application for leave to appeal the decision of Logan J and, as a necessary consequence, the application for Mr Spencer to have leave to act as a director under s 471A of the Act: at [19]. Given those circumstances and the fact that Greenwood J considered all of the submissions Mr Spencer had put before the court in his written submissions on his application for leave to appeal, I reject Mr Spencer's submission that he was denied procedural fairness, or that this provides any basis for distinguishing the decision in Reid v Nairn (1985) 60 ALR 419. It follows that it is not open to Mr Spencer to seek to appeal the decision of Greenwood J, refusing to grant him leave to appeal the decision of Logan J. For these reasons, I order that Mr Spencer's application for an extension of time to file and serve a notice of appeal be dismissed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

appeal from dismissal of a single judge acting under s 25(2)(a) of the federal court of australia act 1976 of an application for leave to appeal the decision of the primary judge consideration of whether there can be an appeal from the decision of a single judge refusing or granting leave practice and procedure

The application was made under O 15A r 6 of the Federal Court Rules ("Rules"). The respondents had filed and served a List of Documents on 7 August 2009, but it is the List of Documents filed and served on 14 October 2009 which is the relevant document. The respondents consented to the applicants' application, save and except as to documents "generated" after November 2006. The Applicants be granted leave to cross-examine each of the First, Third and Fourth Respondents on their respective Affidavits sworn on 14 October 2009 verifying the discovery of the Respondents. The Respondents produce the documents identified and described in Part 2 of Schedule 1 of the Respondents' Amended List of Documents filed 14 October 2009, pursuant to Order 15A rule 10 of the Federal Court Rules . The Respondents make discovery of and produce for inspection the records and files of Perks Chartered Accountants in respect of their review of the Bayview Apartments joint venture including all documents. The List of Documents follows the form of Form 22 of the Rules and is divided into three sections, being Schedule 1 Part 1 , Schedule 1 Part 2 and Schedule 2. The List is verified by a short affidavit from each respondent. The first respondent has verified the List of Documents on behalf of himself and on behalf of the second respondent. He is the sole director of the second respondent. Schedule 1 Part 1 contains 136 documents or classes of documents said to be in the respondents' possession, custody or power. Schedule 2 contains five classes of documents which the respondents state they have had, but do not now have, in their possession, custody or power. Primary records (other than Minutes of Meeting) of the management of the Baview [sic] Apartments Complex which records were last on [sic] the possession custody or control of the Respondents (or of any [sic] them) in or about August 2007 and which were disposed of at or about that time. The documents in Item 4 were last seen in the Bayview Office in 2005. The document in Item 5 was last seen in the Bayview Office in late 2005 or early 2006. (b) The documents in Item 1 of Schedule 2 were disposed of in about August 2007. The Respondents do not know what has become of the documents in Items 2, 3, 4 and 5 of Schedule 2. They seek to cross-examine the respondents about the documents they (the respondents) have had but do not now have in their possession, custody or power. I have reached the conclusion that it is not appropriate to make an order for cross-examination at this stage. However, it is appropriate to order that the respondents each file a further affidavit providing a better statement of when they parted with the documents and what has become of them. The order which the applicants seek in paragraph 2 of the Motion was particularised prior to, and then during, the submissions, by the identification by the applicant of six categories or classes of documents which, they submit, should be the subject of an order for further and better discovery. There is power in the Court to order a party giving discovery to file a further affidavit of discovery. That is part of the power to order that a party provide an affidavit of discovery in the first place. However, I have concluded that there is no power in O 15A to make the type of order which may be made under O 15 r 8. There is no equivalent of O 15 r 8 in O 15A and, in my opinion, there is no sufficient reason to conclude that O 15A incorporates the power in O 15 r 8. The order which the applicants seek in paragraph 4 of the Motion is of a similar nature to the order sought in paragraph 2. For reasons I will give, I think the respondents' affidavit of discovery is insufficient in so far as it does not discover documents in the possession, custody or power of the respondents which meet the description of the six categories or classes of document identified by the applicants and the description in paragraph 4 of the Motion. A further affidavit of discovery should be provided by each respondent on this ground. The order which the applicants seek in paragraph 3 of the Motion is an order for production. I have concluded that privilege has been waived and the documents described in Schedule 1 Part 2 should be produced. I will make an order for production. Before explaining my reasons for reaching these conclusions, it is necessary to summarise very briefly the nature of the applicants' proposed claim. The Bayview Apartments consist of a number of accommodation units and other facilities. The first applicant is the mother of the second applicant and the first applicant often acted through the third applicant, a company of which she is the sole director and shareholder. In about September and October 2001, the first and second applicants entered into a syndicate agreement with the first, second and fourth respondents, amongst others, for the purchase, partial refurbishment and sale of the units. The syndicate was to operate as a joint venture. I will refer to it as the Bayview Joint Venture. The first and second applicants contributed $20,000 towards the deposit required to establish the syndicate, and collectively paid to the first respondent the sum of $130,000 for the purchase of three of eight interests in the syndicate. In about November 2002 and July 2003, the first and second applicants purchased between them 9.5 accommodation units. From late 2001 until November 2006, either the first respondent or the second respondent, a company under the control of the first respondent, or both of them, acted as the property manager, strata manager and letting agent for and on behalf of the syndicate and the Bayview Apartments. Between April and December 2003, the first and second applicants each received payments of $28,125.00, $30,938.00 and $2,462.50 from the first respondent as distributions of syndicate profits. They claim that these payments did not accurately reflect profits made by the syndicate on the sales of units in the Bayview Apartments. They claim that units were purchased by the third respondent with the benefit of vendor finance and the applicants had not approved such vendor finance. From 2003 to 2006, the first and second applicants' collective net losses on their units in the Bayview Apartments totalled $138,000. They claim that these losses arose as a result of preferential letting, undisclosed letting, overcharging and unaccounted or unrecorded cash transactions on the part of the respondents. They submit, by way of example, that in relation to the first class of documents, it is unclear what is meant by "primary records" and that it is unclear what is meant by the statement that the documents were "disposed" of in or about August 2007. Another example of the deficiencies identified by the applicants is that in relation to the second class of documents, to state when the booking books were last seen is not to address the relevant question, which is when the deponent parted with possession, custody or power of the booking books. The applicants submit that there are a number of questions which arise in relation to the issue of what has become of the five classes of documents. They point to the general requirement under various Acts to maintain and preserve documents. They also point to correspondence between the first applicant and the first respondent in October 2007. ... I know mum has been asking you for the Bayview statements for a few years now. The fact is we have to get our taxes done and we need your effort in achieving this by way of the rental property statements. Angelo, if you are opposed to doing this or if this is an unreal expectation on our part, please just let us know so we can evaluate our options. Perhaps I could take a week off work and fly down to Adelaide to help you sort through at least the Bayview books. I am happy to help and have always fully cooperated with your requests for support. Unfortunately, the situation now regarding tax returns is quite serious, and as you pointed out to me yesterday, 'there is too much rhetoric and not enough action'. You are quite right on that point and the time for action is now! The trust account is currently being audited as you know and I expect this to be finished this week and when I get all the documentation back I will then be sending the end of the year statements to you, Mcallisters and the other landlords. This should be by end of next week. The bayview final statement will be completed over the next 4-6 weeks and I did tell you on the phone recently that I was about to attend to this and the reconciliation of the Bank S.A. accounts. In my opinion, the statements made by the respondents about the five classes of documents described in Schedule 2 of the List of Documents are insufficient and ambiguous. The context in which I draw that conclusion is as follows. An order under O 15A r 6 includes documents a person has had or is likely to have had in his or her possession (see paragraph (c)). The respondents acknowledge that obligation in their List of Documents. Although O 15A r 6 does no more than refer to an obligation to make discovery, that obligation incorporates a number of the processes and obligations in O 15. One such obligation is the obligation on a deponent in O 15 r 6(6) to state when he or she parted with a document and what has become of it. Again, the respondents acknowledge that obligation in their List of Documents, although on this occasion they have not complied with it. The fact that O 15A incorporates a number of processes and obligations in O 15 is established by the authorities. I refer to Global Intertrade Pty Ltd v Adelaide Festival Centre Trust [1999] FCA 162 (" Global Intertrade "); Tyco Australia Pty Limited v Leighton Contractors Pty Ltd [2005] FCAFC 115 ; Imperial Chemical Industries Plc v Echo Tasmanian Pty Ltd [2007] FCA 1731. However, the fact that O 15A incorporates certain parts of O 15 does not mean that it incorporates all parts of the Order. Order 15A does incorporate the provisions of O 15 dealing with inspection (that is, Division 2) but that is done expressly by O 15A r 10. By contrast, O 15 r 8 is a free-standing power available in cases of discovery in existing proceedings. It is not expressly incorporated into O 15A and there is no compelling reason to think that it was intended to be available in a case where an applicant does not have sufficient information to enable a decision to be made whether to commence a proceeding in this Court, that is to say, an applicant for preliminary discovery under O 15A r 6. Put another way, while it might be convenient for there to be a power of the type identified in O 15 r 8 in the case of orders for preliminary discovery, it is not so obviously necessary in such cases that it can be implied in the same way as, for example, the provisions dealing with the contents of a List of Documents (O 15 r 6). None of these conclusions mean that an affidavit of discovery under O 15A r 6 cannot be challenged. They do mean that an order cannot be made under O 15 r 8. The grounds upon which the affidavits of discovery may be challenged have been the subject of various formulations in the authorities. In Noel v Noel [1863] EngR 646 ; 1 D.J. & S. 468 , Turner LJ spoke of a reasonable suspicion that the deponent had more documents in his possession. In Lyell v Kennedy (1884) 27 Ch D 1 at 20, Cotton LJ followed this approach. In a case a short time later, his Lordship spoke of a presumption or prima facie case that the deponent had more documents in her possession ( Hall v Truman, Hanbury & Co (1885) 29 Ch D 307 at 319-321). In British Association of Glass Bottle Manufacturers, Limited v Nettlefold [1912] AC 673 at 714, the Lord Chancellor, Lord Haldane, spoke in terms of there being reasonable grounds for being fairly certain that there are other relevant documents. 32, r. 13 is concerned, it cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd. v. Nettlefold , it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive. I think reasonable grounds for being fairly certain that there are other relevant documents is a good workable test and is a test supported by the authorities. As the passage from Mulley v Manifold set out above makes clear, there are limits on the material which may be considered by a Court in determining the sufficiency of an affidavit of discovery. The most significant is that the insufficiency cannot be established by a contentious affidavit. The insufficiency of an affidavit of discovery will ordinarily lead to an order requiring the filing of a further affidavit of discovery. It may, in certain limited circumstances, lead to an order allowing cross-examination of the deponent. I turn now to examine the circumstances in which the Court will make an order for cross-examination of the deponent. In Fruehauf Finance Corporation Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 , Giles J considered an application to cross-examine the deponent of an affidavit put forward in support of a claim for privilege. He referred to Mulley v Manifold and to the principle that the affidavit of discovery is generally conclusive not only as to the amplitude of discovery, but also in relation to any claim for protection from production. Giles J declined to allow cross-examination in that case. He referred to authority to the effect that there was no power to allow cross-examination and to authority suggesting that there was a power, albeit a power to be exercised in limited circumstances. In Olympic Airways SA v Spiros Alysandratos & Consolidated Travel (Vic) Pty Ltd (Unreported, Supreme Court of Victoria, Harper J, 26 May 1997), Harper J allowed cross-examination on an affidavit of discovery of particular documents. I have, of course, formed no concluded view about this. It would be quite improper for me to do so. I simply say that on the material now before the court serious questions have arisen as to the legitimacy of the position thus far taken by the defendants in relation to discovery. Discovery being of particular importance in this matter, it may well be that if the defendants are seeking illegitimately to avoid their obligations in this regard, the plaintiffs will be disadvantaged in a way which will not subsequently be able to be rectified. I appreciate that such a step is unusual. He clearly accepted that there was a power to order cross-examination, but did not think it should be exercised in the circumstances of the case before him. O'Loughlin J's reasons suggest that he considered that the power should be exercised only in very limited circumstances. In Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389 , Moore J declined to make an order for cross-examination of a deponent of an affidavit sworn in response to an order for particular discovery. He considered that there was a power to order cross-examination, but that, as the affidavit of discovery should generally be treated as conclusive, the power should only be exercised "in order to do justice between the parties or to prevent an abuse of the Court's processes". The deponent had filed a supplementary affidavit to explain what he meant by "discarded" in his affidavit of discovery. In IO Group Inc v Prestige Club Australasia Pty Ltd [2008] FCA 1147 , a deponent of an affidavit of discovery was cross-examined. The deponent of the affidavit had not opposed an order for cross-examination. Flick J described the course of allowing cross-examination as unusual. As a result of the cross-examination, the Applicants were proved right. An order requiring a further affidavit to be filed in respect to particular documents, without knowledge of the manifest deficiencies in the existing discovery, may well have proved as ineffective as the discovery previously provided. I reject the respondents' contention that the affidavit of discovery is conclusive and that the Court is unable to make orders remedying the defects. In this case, the insufficiency of the affidavit appears on the face of the affidavit. At the same time, I do not think that this is a case where cross-examination should be ordered, at least at this stage. The respondents can be ordered to each file a further affidavit of discovery and this is not a case where there is no effective means other than cross-examination of preventing an injustice to the applicants. Each respondent must file a further affidavit of discovery in relation to the five classes of documents in Schedule 2 of the List of Documents. In those circumstances, it is not open to me to make an order for particular discovery under O 15 r 8. Nevertheless, as I have said, an affidavit of discovery under O 15A may be insufficient, and an order may be made that a further affidavit of discovery be filed. The principles are those set out above (see [28]-[34]). I must be satisfied that there are reasonable grounds for being fairly certain that discoverable documents exist. I may not have regard to a contentious affidavit. I have reached the conclusion that the affidavit of discovery sworn by each of the respondents is insufficient in the sense referred to above with respect to the following categories of documents: Documents recording or evidencing the cleaning or other services performed on behalf of the syndicate by Patricia Shaw, Dawn Williams and Sue Baker, including tax invoices for the services performed and records of payment of same. The registered mortgage debenture and unlimited debt and interest guarantee referred to in the letter of offer from the Bank of Cyprus dated 12 October 2001. Documents recording or evidencing the mortgage referred to in Recital A and the dispute referred to in Recital B of the Agreement for Vendor Finance and the vendor finance arrangements between the vendors of the Bayview Apartments Complex on the one hand and the syndicate and/or each of the other respondents on the other. Documents recording or evidencing the application of funds withdrawn from the ACN Westpac Bank account (No 137288), such as tax invoices or other supporting documentation. All documents recording or evidencing all invoices rendered by Mr Kalivis and/or ACN as strata manager for and on behalf of the syndicate, for the period late 2001 to July 2004, and payment of same. In reaching this conclusion with respect to the above categories of documents, I have had regard to the exhibits referred to in the schedule handed to the Court. For the most part, those exhibits are part of the respondents' discovered documents. As far as the order sought in paragraph 4 of the Motion is concerned, I think it is appropriate to make an order for discovery, but not for production. Production will follow under the Rules unless there is a claim for privilege. If there is a claim for privilege and that claim is challenged, then it will have to be determined by the Court. I am satisfied that there are reasonable grounds for being fairly certain that there are discoverable documents of the type described in paragraph 4 of the Motion. I have reached that conclusion having regard to the review exercise carried out by Perks and described below (at [51]). I would add that at this stage I draw no conclusion as to the particular documents which are in the possession, custody or power of the respondents. In the first instance at least, that will be a matter for the respondents to determine. However, they put no substantive submissions in support of a contention that they were not privileged when first created. The applicants submit that privilege in the computer records has been waived by the provision of other information by the respondents to the applicants. They rely on what their counsel referred to as an associated material waiver. On 3 November 2009, the solicitors acting for the respondents sent a letter to the applicants' solicitors. The letter contained a number of enclosures. The first enclosure was a copy of a letter from Perks, chartered accountants, to the first respondent dated 18 September 2009 and a number of enclosures to that letter. It is evident from the letter that Perks were engaged by the respondents to carry out a review of what is referred to as the Bayview Holiday Units Joint Venture for the period from 1 July 2002 to 30 June 2005. The enclosures to the letter dated 18 September 2009 included profit and loss summaries for various financial years, all but one of which was prepared by Perks. The second enclosure was a copy of a letter from Perks to the first respondent dated 13 October 2009. For present purposes, it is not necessary to refer to the details of this letter. It is in substantially similar terms to the letter dated 18 September 2009. The third enclosure was a copy of a letter from Perks to the first respondent dated 16 October 2009. This letter contains a response by Perks to various matters raised by the applicants' solicitors in a letter from them to the respondents' solicitors dated 18 September 2009. Perks Chartered Accountants has completed a review of the Bayview Holiday Units JV Syndicate in response to litigation brought against Mr Angelo Kalivis and as part of our ongoing work in preparing tax returns for Mr Angelo Kalivis and Patricia Dabrowski and Timothy Dabrowski and ACN 088370996 Pty Ltd. Mr Angelo Kalivis meets all Perks Chartered Accountants professional fees personally. Perks Chartered Accountants does not act for the Bayview Holiday Units JV directly. We can also confirm that we are not aware of being in possession of any Bayview Holiday Units JV Syndicate documentation that has not already been made available to Iles Selley Lawyers and EL & BM Procter. The author states that privilege is waived over the letters from Perks to the first respondent dated 18 September 2009 and 13 October 2009 respectively and the enclosures to those letters. The author encloses a cheque for $1,769.37 which is said to represent part payment of an amount calculated by Perks. The applicants submit that the Perks computer records referred to in Schedule 1 Part 2 of the List of Documents must form the basis of the spreadsheets and other calculations disclosed to them on 3 November 2009 and the subject of an express waiver by the respondents. They submit that the computer records are material associated with material which has been the subject of an express waiver of privilege. I think the applicants' contention is correct. The respondents instructed Perks to carry out an analysis of the Joint Venture and Perks reached a conclusion as to the balance owing by or to the various members of the Joint Venture. No doubt that was done, in part at least, to satisfy the applicants that a proper accounting had been performed. The respondents decided to expressly waive privilege over the material they provided to the applicants. They thereby waived privilege over associated material ( AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [127] - [176] ). The class of documents in Schedule 1 Part 2 is associated material because it deals with the same subject matter as the material over which privilege has been waived and it forms the basis of that material. I will make an order that the respondents produce for inspection the documents in Schedule 1 Part 2 of the List of Documents. Furthermore, an order should be made that the documents in Schedule 1 Part 2 of the Amended List of Documents filed and served on 14 October 2009 should be produced to the applicants by the respondents. I will hear the parties as to the precise terms of the orders to be made. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

application for leave to cross-examine deponent of affidavit of discovery and for orders for further and better discovery, production of documents and particular discovery where proceedings had not commenced whether o 15, r 8 of the federal court rules applies to o 15a r 6 whether affidavit of discovery insufficient practice and procedure

He brings these proceedings against the third, fourth and fifth respondents alleging that Mr Oskam made false and misleading statements to three employees of the first respondent ( 'Sunland' ) concerning their obligation to join the third and fourth respondents as members, in contravention of s 298SC of Part XA of the WRA. It is alleged that Mr Oskam did so on behalf of the third and fourth respondents (the 'CFMEU' and the 'CFMEU Qld' respectively) in some representative capacity. The applicant seeks declarations as to the contraventions, the imposition of pecuniary penalties and orders compensating the employees for the sums they have paid by way of membership fees. 2 The conduct in question in these proceedings occurred prior to the coming into effect of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). These proceedings were brought under s 298T of Part XA of the WRA prior to those amendments and it is not disputed that the application falls to be determined under the Act as it then was (and see Regulations 2.19 and 4.53 of Chapter 7 of the Workplace Relations Regulations 2006 (Cth)). 3 One of the principal objects of the WRA is to ensure freedom of association, including the rights of employees to join or not to join an organisation or association. Part XA of the WRA is concerned with that freedom and s 298A(a) states that an additional object of the Part is to ensure that employees are free to join industrial associations of their choice or not to join industrial associations. Section 298C, in Div 2, provides that Part XA applies only to the extent provided in that Division. Section 298G provides that the Part applies to conduct by a constitutional corporation and conduct that adversely affects a constitutional corporation. A 'constitutional corporation' is defined by s 4 to include financial and trading corporations within par 51(xx) of the Constitution . Section 298U relevantly provides that the Court may make orders imposing a penalty upon a person or industrial association (par (a)); or an order requiring the payment of compensation to an employee (par (c)). 7 Each of the CFMEU and CFMEU (Qld) (which I shall also refer to as 'the unions' ) are bodies corporate and 'industrial associations' as defined by s 298B(1), that which definition includes an association of employees that is registered or recognised as an association under industrial law and which has, as a principal purpose, the protection and promotion of employees' interests in their employment. Industrial associations may also be an 'organisation' . The CFMEU is an ' organisation ' registered under the Registration and Accountability of Organisations Schedule to the Act and therefore comes within the definition of an ' organisation ' in s 4(1) of the Act. The CFMEU (Qld) is an organisation registered under the Industrial Relations Act 1999 (Qld), but such an organisation is not included in the definition of 'organisation' for the purposes of the WRA. 8 Section 298SC is alleged by the applicant to have been contravened by the making of representations by Mr Oskam to each of the three employees: Robert Holz, Cameron Dann and Dean Angus, in September 2004. There is no way you can work here without being in the union. The civil standard of proof applies and the Court must be satisfied that a case has been proved on the balance of probabilities. As their Honours pointed out in Neat Holdings [1992] HCA 66 ; 67 ALJR 170, statements that clear, cogent or strict proof is required in cases such as fraud are not directed to the standard of proof. They reflect a conventional perception that people do not ordinarily engage in fraudulent or criminal conduct and a court should not lightly make a finding to that effect in civil litigation. In Employment Advocate [2001] FCA 1164 ; 111 FCR 20, that approach was applied to proceedings under Part XA of the WRA. The view was there expressed that it is not common in Australian society for people to engage in conduct proscribed by legislation. An allegation that someone has done so is ordinarily a grave allegation, particularly where it might lead to a significant penalty (Branson J at [67], Kenny J agreeing). 12 Mr Holz commenced work with Sunland on about 19 July 2004. He was responsible for Mr Dann and Mr Angus joining the company shortly afterwards. He is the senior of the three and appears to have some measure of influence with them. He said that on about 8 September 2004 the three of them were working at the spray booth of the factory when they were approached by a person called ' Dan '. It is not disputed that this was Mr Oskam. Mr Oskam also worked at the factory and Mr Holz knew that he was a union representative. Mr Holz says that Mr Oskam brought over some forms and put them on a work bench in the spray booth area. The forms contained an application to join each of the CFMEU and CFMEU (Qld). [Everyone will go on strike and you'll shut the whole place down]. There is no way you can work here without being in the union'. This account is taken from Mr Holz's affidavit sworn on 25 May 2006. He agreed in cross-examination that that part in parenthesis did not appear in a statement taken from him in January 2005. That account did however contain words to the effect that ' the workshop will go on strike '. Everyone here is in the union'. 15 The other employee approached by Mr Oskam on that day, Mr Angus, also gave evidence. In his affidavit he said that he had told Mr Oskam that he didn't want to be in the union and that he recalled Mr Oskam saying words to the effect ' you have to be in the union or else everybody here will go on strike '. I was not persuaded that Mr Angus was entirely reliable as a witness. I do not refer in this regard to his credibility, but rather to his lack of memory of the conversation. Neither Mr Holz nor Mr Dann refer to Mr Angus having made the statement that he didn't want to be in the union; Mr Angus freely concedes that he has no recollection of the conversation. As to the balance of his statement, that a strike might result if they did not join, I would not be inclined to accept his evidence that this was said unless it is corroborated by other, acceptable, evidence. I would also place little or no reliance upon his agreement with the account given by Mr Oskam, to which reference will be shortly made. It seems to me that Mr Angus was an entirely suggestible witness. 16 Mr Oskam had been a union delegate for about two and a half years, although he had received no training in aspects of that role. His account of the conversation was in large part drawn from his usual practice. We would like you to be in the Union. If you want better wages and conditions it's in your interest. He says that by the term 'Union shop ' he meant that most workers were union members and the employer recognised the union and negotiated EBAs (Enterprise Bargaining Agreements) with the union. He denies that he told the three men that they were required to join the union and he denies that either Mr Holz or Mr Dann said that they didn't want to join the union. He specifically denies that he said they would be sacked or other employees would go on strike if they did not join. 18 It is not disputed that, at the conclusion of the conversation between the three employees and Mr Oskam, the cost of joining the union and the method of payment was discussed. Each of them signed an application to join the CFMEU and CFMEU (Qld). 19 Mr Dann gave some further evidence under cross-examination concerning the application forms which included the membership cards. In his affidavit he had said that they had signed a form entitled ' Authorisation to deduct union dues from wages ' and that ' a little later ' Mr Oskam came around with the cards for them to sign. Pressed under cross-examination, he said that by the reference to a ' later time ' he meant later that day. He then recalled that was because Mr Oskam did not have enough of the cards and had to go and get some more. No other witness' evidence suggests this recent version of events to be correct. 20 At some point each of the three employees authorised the deduction of union dues from their wages. In October 2004 they received statements from the unions requiring payment of union dues. This is said to have led Mr Holz to contact the Building Industry Task Force where he spoke to Mr McGann and subsequently received brochures about union membership and industrial relations. He said that Mr McGann advised him to keep notes about what happened at work, but it may be that the focus of any such advice was upon conversations which had taken place with the second respondent. In any event it is not clear that it was directed towards anything that had occurred with Mr Oskam. 21 Mr Oskam says that about three months after Mr Holz had joined the union he came looking for him and asked ' How do I get out of the union? '. He advised Mr Holz that he would have to write and resign. It appears that Mr Holz contacted a person at the offices of the unions and arranged to have forms for resignation sent out to him. Subsequently he rang that office in Brisbane on 4 November 2004 to obtain a telephone number of the organiser, Mick Booth. He telephoned Mr Booth to discuss resignation. He was asked in cross-examination why he did this when he had already arranged to have a resignation form sent out to him. In particular he was asked whether he was trying to provoke a union official. The conversation must have been a little curious to Mr Booth because at one point he apparently asked Mr Holz if he was taping the conversation. Each of the employees resigned in late October 2004. Each of Mr Holz and Mr Dann had paid the sum of $200 for union fees in this period and Mr Angus the sum of $50. 22 Mr Jenkinson was at this time an investigator of the Task Force. He became involved in the investigation of the incident the subject of the proceedings against the first and second respondents in November 2004. He had a number of conversations with Mr Holz commencing on 3 November 2004. His principal concern, at this early point, appears to have been with the second respondent, for he attended at the office of the first respondent to speak with him on 9 November 2004. He attended with another officer of the Task Force on 12 January 2005 to take statements from Mr Holz and Mr Dann at their workplace. The statements were taken separately by each of the officers and typed as the employee spoke. A printed copy was subsequently provided to Mr Holz who signed it on 17 January 2005. Mr Dann's statement was provided to him and signed on 1 February 2005, when Mr Jenkinson attended upon him and Mr Angus and took the latter's statement. On this occasion a printed copy was able to be provided to Mr Angus upon completion of his statement. 23 On 25 February 2005 Mr Jenkinson took a statement from Mr Oskam at the office of the first respondent in the company of the second respondent. The statement was recorded, with Mr Oskam's consent. However on his own account he used the term in his conversation with the three employees. He was not led into using it in the conversation with Mr Jenkinson, as was suggested in submissions. His understanding of the term is perfectly clear, as may be seen by the answer he first gives. He understood that a person had to belong to a union in order to work at the factory. This is how the term would commonly be understood. His later explanations, relating to the benefits which union members receive, do not detract from the clear expression of his understanding nor does the later attempt, in his affidavit filed in these proceedings, to resile, to an extent, from it. We would like you to be in the Union. I therefore accept Mr Holz's account that Mr Oskam conveyed to them that they were obliged to join and that they could not work there unless they did so. The reference to ' the union ' was to each of the CFMEU and CFMEU (Qld) which were identified on the application form. The question which remains is whether he also made statements to the effect that, if they did not join, either they would lose their employment or the other employees at the factory would go on strike. 26 Mr Dann was frank in his concession that he and Mr Holz subsequently discussed the events and the conversations which had taken place on the day in question. It is not however obvious that they did so with any degree of precision prior to their statements being taken in January 2005. Those statements, being close in time and less likely to have been subjected to a process of comparison or further emphasis, as may have occurred with the later affidavits, are more reliable. I place no weight upon the words added to their accounts in their later affidavits. In any event for the most part they repeat what Mr Oskam is alleged to have said would occur if they did not join the union. The respondents also submitted that the accounts should be rejected as unreliable because the witnesses could not now recall when the conversation in question had taken place. I do not consider that follows. 27 Shorn of the later additions, Mr Holz's account contains two predictions alleged to have been made by Mr Oskam: that if they did not join the unions their employment would be terminated or the other employees would strike. 28 The respondents submit that the statement about their employment being terminated could not contravene s 298SC because it cannot be shown to be false. Mr Holz's employment was in fact terminated ' for the reasons that included the reason that Holz was not a member of the third and fourth respondent '. This is a reference to the terms of an admission made by Sunland in the proceedings against it. The respondents seek to adopt it for the purposes of these proceedings. If the admission is relied upon as a statement of fact in these proceedings it might however work against the respondents. It might tend to suggest that that was the understanding which existed between Sunland and the unions at that time. That might, in turn, render more likely the prospect that Mr Oskam, knowing this to be the case, made some statement to the effect that they would lose their positions if they did not become union members. This was not however a matter put to him and I would not draw any such inference for that reason. It would be one bordering upon speculation, without more. That leaves Mr Holz's affidavit as the only source of evidence that the statement was made. The termination of his employment did occur in early December 2004 and he understood it was because of the dealings he and the others had had with the unions and their refusal to remain members of them. This understanding may have affected his later recollection, of what had been said at the time. Mr Oskam said words to the effect that, in order to work there, they had to join the unions. This raises, but leaves unanswered, the question whether something might happen to their employment if they did not. Mr Holz might unconsciously be providing further content to the statement. I would not act upon his evidence where there is no other reliable evidence from another witness. Mr Dann's reference to it was by way of addition to his earlier statement. This tells against the likelihood that he recalled it being said. 29 Despite Mr Oskam's denial, I accept that Mr Holz and Mr Dann each said that they did not wish to be members of the unions. That was the case, as their resignations shortly afterwards confirm. That is why Mr Oskam had to be adamant, pointing out that they had no real choice. They had to join in order to work at Sunland. The question then is whether he is likely to have said more in order to persuade them. I think it likely that he did. Here were three employees who clearly did not want to join a union and did not immediately succumb to the suggestion that they must do so. Each of the three witnesses gave evidence that Mr Oskam said that the other employees would strike if they did not join. I am satisfied that Mr Oskam made such a statement and that it was influential in them joining. 30 The advice to the three employees, that they were obliged to join the unions in order to work at Sunland, was false and misleading. Subject to a submission advanced by the unions, that the section contains a further requirement relating to Mr Oskam's intention, s 298SC(c) has therefore been breached. The further statement about strike action being taken may be said to be 'about' their obligation to join and therefore within the purview of the section. It may be seen as misleading because it connects the prospect of such action with the suggested obligation. If it does not imply that the action is lawful, it is silent about the fact that it is not. 31 It was submitted for the CFMEU and CFMEU (Qld) that an essential element of a contravention of s 298SC is the intention to make a false or misleading representation, relevantly, about a person's obligation to join an industrial association. It was submitted that the appellant must prove that Mr Oskam made the statements deliberately, knowing that union membership was not compulsory, and that the evidence does not permit of such a finding. If that proof were necessary, however, s 298V of the WRA would apply. That section provides, in summary, that if in an application under Div 6 it is alleged that the conduct of a person or an industrial association was or is being carried out for a particular reason or with a particular intent, that reason or intent is presumed unless they prove otherwise. The unions submit that the section cannot apply because the applicant has not expressly pleaded reliance upon it. More to the point, perhaps, is the fact that it did not plead intention as relevant and it was therefore unnecessary to be negatived. As Kenny J pointed out in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; [2001] 106 FCR 482 at [80] , s 298V is only attracted where a specific intention is a separate element of the wrong created by the statute. 32 Section 298D(c) cannot be the source of an element of intention for the purposes of s 298SC. It speaks of a general intention concerning a person's membership of an organisation, which Mr Oskam clearly had. Further, s 298D, and the other sections in Div 2, do not operate to create an additional requirement to sections which proscribe conduct. Sections 298D to 298H are concerned to characterise conduct to which Part XA of the WRA may apply, and to connect it with a head of power. 33 The CFMEU and CFMEU (Qld) submitted that a requirement of proof of intention was to be implied in s 298SC. The words of the section however contain no hint of such a requirement. The unions submit that the nature of the contravention, which involves false and misleading statements, may require it and this was confirmed by a reading of the WRA as a whole or of Part XA. 34 A reference to a statement being false or misleading does not necessarily imply that it was made knowingly so. The cases upon which the unions relied in support of their argument were concerned with s 298M, which contains the element of inducement. An object of Part XA is the maintenance of the freedom of employees to join or not to join industrial associations. Section 298SC(c) sees that freedom as impaired if false or misleading statements are made about the employee's obligation to become a member of the association. It is concerned with the effect upon the employee. So understood, the state of mind of the person making the statement is irrelevant to the question whether the provision has been breached, although it may be relevant to penalty. 35 It is not every statement of the kind referred to in s 298SC which amounts to a contravention of Part XA. The application of the Part is limited in the way provided in Div 2: see s 298C. The conduct in question must be that conduct referred to in ss 298D to 298H, as Cooper J pointed out in Rowe v Transport Workers' Union of Australia (1998) 90 FCR 95 at 100, 106. It is submitted that in the present case Mr Oskam's conduct comes within s 298D(b) and (c), which is to say, the conduct was by him as an officer of an organisation acting in that capacity or it was conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. The latter conduct is said to be referable to the conduct concerning membership of the CFMEU (Qld). It is necessary at this point to consider his position with each of the unions. 36 Mr Oskam refers to himself as a member and 'delegate' of the two unions. What he means by 'delegate' is not gone into. The CFMEU and CFMEU (Qld) do not admit that he was a delegate, but do admit that he was a representative of 'the third and/or fourth respondent' and an 'officer of the third and/or fourth respondent within the meaning of s 298D of the Act' . That section, by par (b), refers to 'an officer of an organisation acting in that capacity'. An officer of an organisation, by s 4, is a person who holds office in the organisation. The CFMEU (Qld) is not an organisation within the meaning of the WRA, as previously mentioned. It is an industrial association. An officer of an industrial association is defined by s 298B(1) to include a delegate or other representative. 37 At this point something needs to be said concerning the admissions made by the unions. They assume some importance in the case. Regrettably the allegations that Mr Oskam was a representative and an officer of an organisation were expressed to be with respect to the CFMEU 'and/or' the CFMEU (Qld). The admission by the CFMEU of those allegations is clear enough. They are directed expressly to it. The effect of the admission by CFMEU (Qld) is less clear. It could not be taken to admit that he was an officer of it as an organisation within the meaning of s 298D(b), for the reasons given. It might be taken to admit that he was its representative, because it goes on to expressly deny that he was also a delegate. So much may in any event be inferred from Mr Oskam's apparent authority. 38 With respect to the CFMEU, Part XA applies because the conduct in question was conduct by an officer of it as an organisation. That does not however conclude the question whether that conduct should be taken as its conduct or that it should be held liable for it. Section 298D, and the other sections in Div 2, are not concerned with what constitutes a contravention or the liability of an organisation or other entity for it. 39 It was submitted for the CFMEU that the common law rules determine the question of its liability and that it is necessary for the applicant to show that either that Mr Oskam was its 'directing mind' ( Tesco Supermarkets Ltd v Nattras [1971] UKHL 1 ; [1972] AC 153) or, if it is to be held vicariously liable, that he was its agent acting within the scope of his actual or apparent authority. In each case this involves a factual enquiry. For Mr Oskam's authority to be apparent more is required than his holding himself out as authorised, it is submitted. 41 The CFMEU relies upon statements in Rowe v TWU 90 FCR at 111 and following that this provision does not affect the application of the directing mind principle. That may be so, but Cooper J also explained that the subsection is concerned with the relationship between industrial associations and the individuals, identified in (a) to (d), rather than with a corporation's alter ego, which is the focus of the principle. His Honour said that when the directing mind principle operates, an industrial association will be liable without the need to have recourse to s 298B(2) (and subs (3)). The subsections were intended to cover relationships between an industrial association and the persons specified in pars (a) --- (d) inclusive who are servants, agents, delegates or representatives of the industrial association rather than its alter ego. The subsections are also intended to remove the necessity to identify where the line is to be drawn between persons acting as the directing mind of the industrial association and those acting in a representative capacity only. It is not strictly legally its conduct, although it may be conduct for which it is vicariously liable at common law, his Honour observed. Section 298B(2) and (3) are part of the means adopted to control the conduct, and to regulate the affairs, of organisations registered under the Act, and, to control the conduct of industrial associations in respect of the affairs of registered organisations and the affairs of constitutional corporations. It is not necessary to refer in detail to his Honour's ruling on this point. It is sufficient to observe that his Honour held that the argument failed to distinguish between the ascertainment of facts and the legal consequence of the facts as found. 44 The CFMEU and CFMEU (Qld) rely upon that part of his Honour's conclusion, that s 298B(2) may require the ascertainment of facts, in support of a submission that the section requires proof of agency or some other basis for liability as required by the general law. The submission misunderstands the enquiry under the section, which is as to the relationships identified. In some cases this may require an assessment of the kind mentioned, for example where the relationship alleged was that of agent. In the present case however Mr Oskam was an officer of the CFMEU at the relevant time, acting in that capacity within the meaning of s 298D(b), by that organisation's own admission. It is not necessary to enquire further. The consequence of s 298B(2) is that his actions are taken to be those of the CFMEU. 45 It was not part of the applicant's case against the CFMEU (Qld) that the conduct in question fell within s 298D(b) so that Part XA applied. Rather it was contended that in relation to Mr Oskam's conduct, par (c) of that section applied. Section 298D(c) applies the Part to conduct carried out with a purpose or intent relating to a person's membership or non-membership of an organisation. Here the relevant purpose can only be connected to membership of the CFMEU as an organisation, not the CFMEU (Qld). Section 298D(c) may therefore provide another reason why the Part applies to conduct, conduct contravening s 298SC, for which the CFMEU may be liable under s 298B(2)(b). The position of the CFMEU (Qld) is however different. 46 The terms of s 298B(2)(b) expose a difficulty in the applicant's case. The question which arises with respect to Mr Oskam's conduct, so far as it falls within s 298D(c), is whether it was carried out as an officer or agent of the CFMEU (Qld) 'acting in that capacity' . He was clearly its officer. This follows from the extent of its admission and the definition of an officer of an industrial association in s 298B(1). Given his role as a representative of the CFMEU (Qld), to enlist new members, he would also qualify as an agent for that purpose. It could not however be said that, in seeking out members of the CFMEU, he was acting in that capacity on behalf of the CFMEU (Qld). The evidence does not permit such an inference to be drawn and no such assumption could logically be made. The proper characterisation of the conduct here in question is conduct having the purpose or intent of membership of the CFMEU (Qld), an industrial association. That conduct does not come within s 298D(1) and Part XA cannot apply on that basis. 47 The alternative approach adopted by the applicant with respect to the CFMEU (Qld) relies upon s 298G. For s 298G to apply it must be shown that Mr Oskam's statements adversely affected Sunland. This can only be established if they affected the three persons, to whom they were made, in their capacity as employees of Sunland. Section 298D(2)(b) looks to an affect on a corporation through conduct directed to its employees. An example of conduct of this kind is provided by s 298Q, which concerns industrial associations acting against employees. It provides, by subsection (1), that an industrial association must not take or threaten to take action which prejudices a person's employment for reasons which include them joining an industrial association or paying a bargaining services fee. 49 The applicant relies upon the statement, or prediction, to the employees that if they did not join, strike action would follow. To this may be added the statement that they could not work for Sunland unless they were members of the unions. The statements have a connexion with their employment but neither can be said to threaten continuation of their employment. Indeed the statement about possible strike action is, on one view, directed to the employer. What both statements are likely to have done is to put pressure upon the three persons. They imply that their position as employees may not be maintainable if they do not join, at least so far as all the other employees, who are members, are concerned. They are faced with a choice as to whether they wish to continue their employment. Their position as employees is therefore affected. The statements that the three employees were obliged to join the CFMEU and CFMEU (Qld), in order to work at Sunland, and that strike action would result if they did not, were false and misleading. Part XA applies to that conduct by reason of s 298D(b) and because the CFMEU is an organisation under the WRA. It is liable for the conduct of its officer. Section 298G applies the Part to the conduct in connexion with the CFMEU (Qld) because it affected the three employees and this is taken to have adversely affected Sunland. The CFMEU (Qld) is liable for the conduct of its officer. 51 The question of appropriate penalties is to be the subject of further submissions. There is no dispute that orders for compensation could be made, by which the three employees are effectively to be reimbursed for the membership fees they paid: $200 by each of Mr Holz and Mr Dann and $50 by Mr Angus. A reference to the applications forms suggests that the fee is payable to the CFMEU and that entitles a person to membership also of the CFMEU (Qld). It does not suggest that the CFMEU (Qld) is the recipient of part of the monies, but this is not clear. What proportion the CFMEU and CFMEU (Qld) should pay of the sums by way of compensation can be clarified on the adjourned hearing. 52 The applicant also seeks declarations that the unions and Mr Oskam have engaged in conduct in contravention of s 298SC. The declarations proposed would identify the gist of the conduct, as is required: Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91, at [89]-[90]. Section 298U of the WRA provides that the Court may make any order consequential upon penalties and compensation. Pursuant to s 21(1) of the Federal Court Act 1976 (Cth) the Court has power to make declarations. The question which arises is whether it is appropriate to do so. I am satisfied that there is a public purpose in identifying the conduct and the contraventions so far as concerns the CFMEU and CFMEU (Qld), but not Mr Oskam. I will hear from counsel as to the terms of such a declaration given the findings made. 53 The matter will be adjourned to a date to be fixed for argument on the question of penalties, the quantum of compensation and the terms of declarations as to the conduct of the CFMEU and CFMEU (Qld). I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

freedom of association employees free to join or not join industrial associations meaning of "industrial association", "organisation" and "constitutional corporation" whether false or misleading statement made about employee's obligation to join union whether proof of intention required whether union liable for conduct whether conduct by an officer of an organisation application of "directing mind" principle whether agent acting with apparent authority constitutional corporation whether conduct adversely affected constitutional corporation standard of proof whether civil standard of proof applies reliability of witnesses "industrial association" "organisation" 'constitutional corporation' workplace relations practice & procedure evidence words & phrases

His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which is adverse to the appellants. 2 The first appellant ("the appellant"), a Hindu in a predominantly Hindu state, claims to fear persecution from Muslim groups because of his Hinduism and activities in support of it. The second appellant is the wife of the appellant, and relies on her membership of the family unit in making her claim. The appellant claims that in February of 2002 he was on a train set on fire by Muslim fundamentalists and was present when riots broke out between Hindus and Muslims. His shop in Gujarat was looted and set on fire and he was later threatened. He claims he did not receive any protection from the police despite reporting the threats and his fears. 3 The grounds of appeal suggest that, first, the Tribunal made a jurisdictional error when adopting an approach to the meaning of well-founded fear which was "harsh", which "failed to assess the cumulative effects of separate incidents" and did not count the appellant's past persecution as constituting a real chance of future harm. Second, it is said that the Tribunal did not properly consider all the circumstances of the appellant in relation to the matter of effective state protection and failed to inquire if such protection would be meaningful in respect of the appellant. Thirdly, the Tribunal erred in failing to look at the practicality of the appellant's ability to relocate in India. 4 No actual error was pointed to on the part of the learned Federal Magistrate in respect of any of these matters and in my opinion he was correct for the reasons he gave. 5 In written submissions the appellant added comments on two other matters. The first may be dismissed as not sounding in jurisdictional error, namely a suggestion that the Tribunal member based his decision on "old and one sided country information". That deals with the merits of the Tribunal's decision entirely and cannot give rise to a ground for a judicial review. 6 The second matter to which the appellant refers is that he says there were difficulties with the interpreter provided for him. He speaks the Gujarati language and it seems that he had a Gujarati interpreter. However, he was in Griffith and the Tribunal was conducting an inquiry, of which his credibility was a central feature, by video link. This is very unsatisfactory in refugee cases, when so much is at stake and money ought certainly be found to enable Tribunal members to travel to country areas where there is a concentration of applicants. 7 The complaint about the interpreter was raised before the learned Federal Magistrate. His Honour pointed out that the Tribunal member appeared to have been sensitive to possible interpretation problems and that he had invited the appellant to express any concerns that he had in relation to such an issue but the appellant has expressed no such concerns. The appellant told me that he forgot to do so. 8 There is actually no evidence of any difficulty with the interpretation. Such preliminary inquiries as I have been able to make indicate that it is extremely unlikely that any useful evidence could be put forward about this and I do not propose to examine the matter further. 9 On the basis of what was put before the Federal Magistrate his Honour was right for the reasons he gave. 10 In Sydney, where I am hearing this appeal, a young man, an accounting student, is acting as an untrained interpreter for the appellant. The interpreter is an intelligent and conscientious person and his knowledge of English is not in doubt, nor is his knowledge of Gujarati, but he has not been trained in interpretation. This is also unsatisfactory in this Court on an appeal. 11 I do not know how well trained people who act as Gujarati interpreters in Griffith are. It appears that a number of Gujarati people have been brought into Australia as labour to assist primary industry in the Griffith area. I am told that steps are in hand, or have been in hand, to properly train some Gujarati interpreters in that area, among other things for the sake of assisting both the Minister's departmental delegates and the Tribunal. 12 It nevertheless seems likely that there will be, in some cases, some interpretation problems. All the more reason why, in my opinion, hearing these matters by video link is unsatisfactory. It is not beyond the bounds of possibility that in some cases it could amount to a jurisdictional error to deprive an applicant of the opportunity to give viva voce evidence. However I am not satisfied that there has been any effective denial of the appellant's rights in the present case. 13 The appeal will be dismissed with costs, assessed in the sum of $2,000. 14 I will direct that these reasons be forwarded to the Minister for his/her personal attention and also to the President of the Tribunal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

migration review of decisions refugee review tribunal conduct of review assessment of applicant's credibility by video link generally unsatisfactory need for provision of trained interpreters citizenship and migration

A bankruptcy notice was issued on 6 April 2005 and was served on the respondent on 9 April. He did not comply with the demand made by the notice, and thus committed an act of bankruptcy on 2 May 2005. The appellant filed a creditor's petition on 3 May 2005. On 25 May 2005 the respondent filed in the State Court an "application for leave to defend after order made" seeking to have the judgment set aside and leave to defend. The "special circumstances" on which the respondent relied for this relief were that the complaint had never been served on him, he did not owe the amount claimed in the complaint, and he had made the application as soon as practicable after becoming aware of the judgment. On 8 June 2005 the respondent filed a notice of intention to oppose the petition on the grounds that the complaint on which the judgment was based had not been served, he was able to pay his debts, and an application to set aside the judgment had been made in the State Court. On 10 June 2005 the respondent filed an affidavit of solvency. On 27 June the State Court set aside the judgment and granted the respondent leave to defend the complaint. On 25 October 2005 the creditor's petition was dismissed by the Federal Magistrates Court, and orders were made for the filing of submissions as to costs. On 5 April 2006 a Registrar of that Court ordered that the appellant pay the respondent's costs to be taxed in default of agreement. The appellant's application for review of the costs order pursuant to s 104 of the Federal Magistrates Act 1999 (the Act) was dismissed, and the appellant was ordered to pay the respondent's costs. The appellant appeals from those orders. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 the Chief Justice determined that the appellate jurisdiction of the Court be exercised by a single judge. This is the real issue in the proceedings. Counsel for the applicant ... submitted that it was perfectly reasonable for the creditor to proceed with bankruptcy proceedings .... Counsel for the respondent submitted that the creditor was too hasty in pursuing bankruptcy and incurred costs unnecessarily. [The applicant] submitted that there were two periods of unreasonable delay on the part of the respondent; firstly, the period between 16 March 2005 when the respondent became aware of the judgment debt and 6 April 2005, which was the date of the issue of [the] bankruptcy notice, and, secondly, between service of the bankruptcy notice on 9 April 2005 and the application by the respondent on 25 May 2005 to set aside the default judgment. In the meantime the creditor's petition had been issued and was served on the respondent on 3 May 2005. It was submitted that the issuing of the petition involved no prejudice to Chris Mladenis as fair warning had been given in the letter of 14 April 2005 that further steps to enforce the judgment were imminent. The applicant sought costs on the basis that the petition was a legitimate step to take in relation to a judgment properly obtained, notwithstanding that the petition was ultimately dismissed. ... On the evidence before me, the firm representing the applicant creditor was contacted by Mr Mladenis' daughter, Ms Dimitrijevski, on the same day that Mr Mladenis was made aware of the judgment against him, namely, 16 March 2005. Mr Ferguson, to whom Ms Dimitrijevski spoke, does not take issue with her evidence that she requested a copy of the judgment and documents evidencing the claim against her father but that those documents were not provided to her. The bankruptcy notice was served on the respondent on Saturday 9 April 2005. The respondent's legal representatives wrote to the applicant on Wednesday 13 April 2005, requesting a copy of the relevant documents concerning the default judgment. In that letter they specifically requested that the applicant refrain from taking any further steps to enforce the judgment, foreshadowing an application to set aside the judgment. They specifically foreshadowed an application for costs in the event that the applicant continued with bankruptcy proceedings and the default judgment and bankruptcy were set aside. It was not reasonable in those circumstances for the applicant to proceed without further notice to the respondent. Once on notice of a bona fide intention to defend the action, it was incumbent on the applicant to engage appropriately with the respondent. The applicant argued that the defendant was on notice the applicant would strictly enforce the debt. He relied on the statement in the responding letter of 14 April 2005 that the judgment was properly obtained and that the applicant would not refrain from taking further steps. This is insufficient in the context of the respondent contacting the applicant within three business days of service upon him of the proceedings and indicating a likely application to defend the original claim as well as the bankruptcy proceedings. The applicant, as a result of acting for the defendant previously, was aware of the solvency of the respondent. He knew that the respondent had a fulltime job and owned his own home. By being too keen to prosecute the bankruptcy the applicant caused unnecessary cost to himself and to the defendant. It is appropriate in those circumstances that he bears the costs of those actions. The Magistrate must exercise any discretion on the material before him or her unaffected by how the Registrar may have exercised the discretion. It was submitted that the review was conducted as if it were an appeal, and that the Magistrate did not exercise her own discretion but rather considered whether the exercise of the Registrar's discretion had miscarried. (The reference in (a) to two costs orders reflects the fact that the Magistrate heard another application for review of a costs order made by another person at the same time as the appellant's application. The proceedings before me were conducted as a hearing de novo. The parties relied upon the same affidavit material and written submissions and, through Counsel, made further oral submissions. Neither of the applicants sought to cross examine Mr Mladenis. The Magistrate has used the words of s 104 of the Act --- "may ... apply to the Federal Magistrates Court for review of that exercise of power". See also Rule 20.03. As indicated at [7], the Magistrate was aware that she was conducting a hearing de novo. 9 The Magistrate's statement that the history of the proceedings is well set out in the Registrar's decision does not stand alone. It is followed by seventeen paragraphs which record uncontroversial events, amongst them the provision of legal services by the appellant, the complaint in the State Court, the default judgment, the bankruptcy notice, non-compliance, the creditor's petition, orders of the State Court and dismissal of the creditor's petition. These are simply background matters which the Magistrate has adopted as an accurate record of the events that led up to the costs application ("well set out"). 10 The seventeen paragraphs also contain extracts from affidavits and exhibits that had been before the Registrar and were before the Magistrate. This scene setting of uncontroversial matters does not indicate that the Magistrate proceeded as though she was entertaining an appeal as opposed to a hearing de novo. 11 At [33] to [35] of the Magistrate's reasons she quoted passages from the Registrar's reasons which explain why it was that the Registrar declined to depart from the general rule that costs follow the event. Had this part of the reasons (pars [32] to [38]) been accorded a heading, as are all other parts, it would have been "Proceedings before the Registrar" or "What the Registrar did". It is again part of the background. Mere recitation of these matters does not amount to a departure from the requirement that the Magistrate exercise her own discretion. Nor does it indicate that she was erroneously enquiring whether any error was apparent in what the Registrar had done. 12 While it is true that the Magistrate "restated the orders" made by the Registrar, there is no substance in the claim that this was a departure from the Magistrate's assigned task. It is unavoidable that the Magistrate inform the reader what the proceeding before her is about; what the order the subject of the review is. The fact that it is said twice, once in the opening paragraphs and later at the conclusion of the factual exposition, is neither here nor there. 14 In adopting as her own statement of the delay issue the words used by the Registrar, the Magistrate has not in my view shown that she was departing from her proper function of deciding what order should be made in the exercise of her own discretion. The adopted passage must be read in its context. The passage is an introduction to the Magistrate's own assessment of the case. When so understood, it is essentially the same as if she had said "As the Registrar said, the question for decision is ....". 15 After examining the matters recorded in the last part of [13], the Magistrate said that in her view "the orders made by Registrar Mussett were appropriate". In a de novo review, care is required in the formulation of a decision. On the one hand, to say that "no error has been shown in the Registrar's reasons" would be strongly suggestive of a failure to carry out the task entrusted to the Magistrate. Perhaps at the other extreme would be "In the exercise of my discretion, I think the order that should be made is ...", whether or not that happens to be the same as the Registrar's order. The present case lies between these extremes. To say that the Registrar's orders were "appropriate" is perhaps a trifle incautious. However, when read in the context to which I have earlier referred, the sentence in question really amounts to no more than "I propose to make the same orders as those made by the Registrar". 16 Finally, I am quite unable to see how the fact that the Magistrate did not have before her current affidavits indicates that she was treating the review as an appeal rather than a hearing de novo. Her Honour could only proceed on the basis of the material placed before her by the parties. Rule 20.03, set out at [4], shows that a review may be conducted, as it was here, on the basis of the material before the Registrar. Paragraph (c) of the Rule enables the Court to grant leave to file further evidence. The parties did not seek to rely on additional evidence. As the Magistrate said, the proceedings before her were conducted as a hearing de novo upon the same affidavit material and written submissions as were before the Registrar. There is no substance in this complaint. 17 I have necessarily dealt with the indicators relied on by the appellant one at a time. Even if they are considered in globo they do not assist him. 18 Accordingly, I reject the first ground of appeal. The appellant acknowledged the obstacles that lie in the way of such an attack. It must be shown that an error has been made in the exercise of the discretion. There is a strong presumption in favour of the correctness of the decision appealed from, which must be affirmed unless the court of appeal is satisfied that it is clearly wrong: Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25 ; (1953) 94 CLR 621 at 627. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. The starting point is that costs normally follow the event. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute. The appellant takes issue with the Magistrate's statement that "whether or not the complaint was served ... was a matter in dispute". There was evidence that a process server had served the complaint on the respondent on 16 July 2004 by "leaving it with him personally". There was also evidence from the respondent's solicitor that he had filed an application in the State Court for leave to defend in which he set out the special circumstances upon which the respondent relied, including the fact that the complaint was never served on him. He exhibited an affidavit sworn in the State Court in which the respondent deposed that he was never served with the complaint. The respondent referred to the process server's affidavit and denied the correctness of its contents. He noted that the process server did not depose to having asked the identity of the person with whom he left the documents. In those circumstances the Magistrate was entitled to say that there was a dispute as to whether the respondent had been served with the complaint. The defendant's son, Paul Mladenis, filed an affidavit in which he deposed that he was given documents by a process server at his father's house but that he put them in the bin, hoping to deal with the matter without involving his father. The Magistrate recorded the "issue in these proceedings" as the "tardiness or otherwise" of the steps taken by the respondent, and noted the two periods of alleged unreasonable delay on his part. Of course, if he was never served, he would not be expected to file a defence. 24 The appellant then claims that the Magistrate failed to take into account that the appellant had written to the respondent on 17 September 2004 advising him that default judgment had been entered against him. The Magistrate did not refer to this letter. She accepted the respondent's evidence that he only became aware of the fact that judgment had been entered against him when on 16 March 2005 he received a letter from Anthony Peterson & Co, a firm of solicitors unconnected with the parties. I will call this letter the Peterson letter. The respondent's account was verified by his daughter, whose affidavit in the State Court stated that her father had faxed the Peterson letter to her on that day. This led her to contact the appellant's associate, Mr Ferguson, to enquire what the judgment was about. She asked him for copies of the relevant documents, which she never received. The Magistrate appears to have accepted this evidence. I will return to this complaint at [32]. 25 It is then said that the Magistrate placed "too much weight" on the respondent's evidence that he had no knowledge of the judgment until he received the Peterson letter. The appellant says that the Magistrate's finding, accepting the respondent's evidence, is contrary to his (the appellant's) evidence. He also draws attention to the fact that the Peterson letter is dated 27 November 2004, three and a half months before its alleged receipt. The Peterson letter appears to be a standard form letter sent to judgment debtors. It describes itself as a courtesy letter to inform the recipient that judgment has been entered against him, that the firm is not involved in the matter "other than to offer our services to you", and that it has vast experience in dealing with credit matters and providing services to those who have been affected by court judgments. I will return to this complaint at [32]. 26 It is next asserted that the Magistrate relied "too heavily" on the actions and statements as to the possible future conduct of the respondent's former solicitors, GSM, and thereby failed to consider properly the actions and conduct of the appellant. On 13 April 2005 GSM wrote to the appellant advising that the respondent knew nothing about the debt. They requested a copy of the State Court summons and the affidavit of service. If you continue with bankruptcy proceedings despite our request, and an application is then made to set aside the judgment and set aside the bankruptcy proceedings, we will produce this letter on the question of costs. We trust this will not be necessary. These matters are recorded at [64] and [66] of the Magistrate's reasons set out at [3]. 27 The Magistrate relied on the GSM letter in answering the appellant's case on the respondent's delay between service of the bankruptcy notice (9 April 2005) and the application to set aside the default judgment (25 May 2005). What she said about the GSM letter is at [65] and [66] of her reasons set out at [3]. 28 Whether someone has behaved unreasonably in particular circumstances involves a value judgment. It is a matter about which minds may well differ. In this case the appellant's conduct in response to the request in the GSM letter was relevant to the exercise of the Magistrate's discretion. The complaint that the Magistrate "relied too heavily" on that letter as opposed to other material does not demonstrate error in the exercise of the discretion. It simply argues about the end result of its exercise. See the passage from Norbis quoted at [21]. Nor does it mean, as the appellant submitted, that the Magistrate "thereby failed to consider properly the actions and conduct of the appellant". 29 The appellant claims the Magistrate erred by relying on two earlier decisions: Hogg v J Isherwood-Hicks Pty Ltd (1992) 108 FLR 62 and Microsoft (International) Pty Ltd v Total Peripherals Pty Ltd [1998] VSC 50. It is said that they are distinguishable. In my view the appellant mistakes the use the Magistrate was making of these cases. She accepted that they were distinguishable. She was deprecating precipitate action on the part of the appellant, as were the judges in the two cases relied on. The Magistrate did not commit an appealable error by relying on what was said in those cases about precipitate action, as a relevant consideration, simply because the cases are distinguishable on their facts. 30 The appellant then assailed part of what the Magistrate said at [67] of her reasons set out at [3]. No exception is taken to the first two sentences. But it is said that the Magistrate erred in concluding that the appellant was too keen to prosecute the bankruptcy. That too is a value judgment about which minds may reasonably differ. No error has been shown. 31 It was submitted that the Magistrate had wrongly characterised the GSM letter as giving notice of a "bona fide intention to defend". It is true that the Magistrate thus overstates the import of the letter. Nevertheless it was a sensible letter drawing attention to the appellant's lack of awareness of the alleged debt, asking for copies of the summons and affidavit of service, and containing a reasonable request that the appellant stay his hand on continuing with bankruptcy proceedings. In my view the overstatement does not disclose an error such as to infect the overall exercise of discretion to award costs against the appellant. 32 I return now to the matters held over from [24] and [25]. They are related. As appears from [55] and [63] of the Magistrate's reasons set out at [2] and [3], she found, and attached importance to the finding, that the respondent became aware of the judgment on 16 March 2005 when he received the Peterson letter. The 17 September 2004 letter bears on the legitimacy of this finding. Mr Ferguson deposed to having sent the letter. It is addressed to the respondent's home address. The respondent does not advert to it in his affidavit. The Magistrate did not refer to it. A failure in reasons for decision to refer to a particular piece of evidence does not necessarily indicate that it has been overlooked. However, in the present case a central matter for decision was the time at which the respondent became aware of the judgment against him. The material directly bearing on that included the process server's affidavit, Mr Ferguson's evidence, the respondent's account of receipt of the Peterson letter, and the respondent's son's evidence (see [23]). The Magistrate referred to the first, third and fourth of these. She also referred to Mr Ferguson's affidavit, but not to the presently relevant part of it. The adequacy of the affidavit of service was in question. The content of Mr Ferguson's letter was clear. The respondent's account is questionable, both because he failed to address the 17 September letter and because he offered no explanation as to why the Peterson letter, dated 27 November 2004, did not reach him until 16 March 2005, or why such a form letter was hand-delivered. Further, the status of his affidavit is uncertain. It was sworn for use in proceedings in the State Court, and was before the Magistrate only as an exhibit to his solicitor's affidavit in support of his application for costs. 33 In those circumstances, the 17 September letter cried out for consideration. The first of the periods of allegedly unreasonable delay noted by the Magistrate at [55] of her reasons set out at [2] was of three weeks duration. If the respondent became aware of the judgment soon after the 17 September letter was posted, the duration of the period was twenty eight weeks. I am compelled to the conclusion that the Magistrate overlooked the letter or did not appreciate its significance. Because it bore so directly on the duration of the first period of delay, when delay was the very matter relied on by the appellant as justifying the costs order he sought, the 17 September letter was a material consideration which she failed to take into account. 34 The notice of appeal contains grounds that did not feature in the appellant's 20 page Contentions or in counsel's oral argument, and I have treated them as not having been pursued. In any event, the orders in [35] make it unnecessary to deal with those grounds. 35 The appeal must be allowed. I will remit the matter to the Federal Magistrates Court for further hearing. This will be a resumption of the de novo hearing; as to which see rule 20.03(c), set out at [4]. Any orders the Magistrate may make should include orders dealing with the costs of this appeal and of the review before Federal Magistrate Hughes. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

creditor's petition costs of dismissal whether respondent delayed in having default judgment set aside registrar found for debtor from decision of registrar whether magistrate conducted hearing de novo exercise of discretion whether magistrate failed to take into account material consideration bankruptcy appeal

The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal ('Tribunal') which was handed down on 30 August 2001. By that decision, the Tribunal had affirmed a decision of the delegate of the second respondent to refuse the appellant a protection visa. 2 The appeal is being heard by me as a single judge pursuant to s 25 (1AA)(a) of the Federal Court of Australia Act 1976 (Cth). An appeal to this Court from a decision of the Federal Magistrates Court is an appeal by way of re-hearing, but the process remains a process for the correction of error. In turn, the Federal Magistrate was examining the question whether there was jurisdictional error on the part of the Tribunal. The Tribunal concluded that there was 'an overwhelming lack of credibility' in the appellant's claims regarding his political profile and activities and alleged fear of persecution for political reasons. The Tribunal formed the view that he had 'fabricated a colourful set of claims' to support his application for a protection visa. It is clear that the Tribunal was not satisfied that the applicant was a Naxalite as he had claimed, nor was it satisfied that the applicant was wanted by the police. The Tribunal set out its findings, and gave reasons for its findings. On what is before me it is clear that these findings were open to the Tribunal on the material before it. A finding on credibility that was open to the Tribunal on the material before it does not give rise to an error of law: see Mashayekhi v Minister for Immigration and Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703. Findings on credibility were described by McHugh J in Re Minister for Immigration ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 as the function of the primary decision-maker, par excellence: at 423 [67]. That does not mean that such findings are invulnerable to review, but it does mean that they will not ordinarily be reviewable if the Tribunal has provided a rational basis for rejecting the claims and relied upon matters that were logically probative of the issues it was determining: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559. His claim for a protection visa was founded on the contention that he had a well-founded fear of persecution on the ground of his membership of the Marxist Leninist Naxalite party. 8 The notice of appeal alleged a number of jurisdictional errors. First, it was contended that the Tribunal erred in adopting an unduly harsh approach to the requirement that there be a well-founded fear of persecution for a Convention reason, and more particularly, that the Tribunal did not apply the 'real chance' test enunciated in cases such as Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62 ; (1989) 169 CLR 379 (' Chan' ). Those cases require both a subjective apprehension of persecution and an apprehension that is grounded in objective reality. This has been described as a 'real chance' of persecution, namely, a chance that is not remote or insubstantial or a far-fetched possibility: see Chan at 389, 398, 407 and 429. Secondly, the notice of appeal contended that the Tribunal made errors in its assessment of 'serious harm' as embodied in s 91R(1)(b) of the Migration Act 1958 (Cth). Thirdly, the notice of appeal contended that the Tribunal erred by basing its findings on country information concerning the Naxalite movement, rather than on information provided by the appellant. The fourth ground of appeal was that the Tribunal misdirected itself by failing to correctly identify the appellant's social and political group, which was described as a non-violent segment of the Naxalite movement. Finally, the notice of appeal raised a contention that the Tribunal was biased. This contention appears to be largely premised upon the way in which the Tribunal questioned the appellant and then proceeded to reach conclusions as to his credibility. 9 In addition to the grounds set out in the notice of appeal, I have taken into account the written submissions filed on behalf of the appellant and the oral submissions made on behalf of the appellant by Mr Jayawardena. In my opinion, the grounds raised by the notice of appeal, the written submissions and oral submissions on behalf of the appellant do not establish any appealable error by Nicholls FM. 11 The principle ground was that the Tribunal did not make a proper assessment of the existence of a well-founded fear of persecution and serious harm because the Tribunal, and subsequently the Federal Magistrate, misdirected themselves in the way in which they dealt with the appellant's political affiliations. The appellant's written submissions argued that the Tribunal ignored the appellant's claim that he was not in the violent group of Naxalites and that, rather, he was a member of a moderate group associated with the Naxalite movement, which operated in the Punjab fighting for the rights of the peasants and common masses. 12 The appellant submitted that the Tribunal discredited the appellant's claims and ultimately rejected them on credibility grounds because of its view that the Naxalite movement was committed to violence. The appellant contended that this was an inaccurate assessment of the part of the Naxalite movement which the appellant was associated with. Much of that material was directed to violent activities of the Naxalites, however counsel for the appellant pointed me to a reference which stated that a secret conference of leaders of 13 Naxalite groups held on 30 January to 2 February 1981 had agreed to abandon terrorist methods and concentrate on public political agitation. It was submitted that this reference supported the appellant's contention that there were Naxalites who did not engage in violence, and that the appellant was a Naxalite leader in Punjab whose group was not committed to violence nor was it responsible for carrying out any violent activities. 14 The Federal Magistrate found that the Tribunal took into account the appellant's claim that he was a Naxalite and that he did not believe or participate in violent activities. The Federal Magistrate specifically referred to the Tribunal's finding that if the appellant had never been involved in or called for violence, as he now claimed, then the Tribunal could not be satisfied that he was a Naxalite. The Federal Magistrate observed that this finding was open to the Tribunal on the material before it. 15 Having carefully read the reasons for decision of the Federal Magistrate and those of the Tribunal, I consider that the Tribunal assessed the particular claims made by the appellant, including the claim that he engaged in non-violent political activities in the Punjab. Having looked at those matters, the Tribunal concluded that it was not satisfied that the appellant is a wanted Naxalite and that he faced persecution in India. As the Federal Magistrate rightly held, this was a factual conclusion which was open to the Tribunal. 16 I also note that in the proceedings below, the appellant maintained somewhat inconsistent claims. It was submitted on behalf of the appellant in the Federal Magistrates Court that he had never claimed to be a Naxalite, and that he was a non-violent Naxalite. The first part of that submission was rejected by the Federal Magistrate by reference to the evidence of the appellant's claims before the Tribunal. 17 In my opinion, even if the Tribunal made an error of fact concerning the existence of non-violent segments of the Naxalite movement, that does not lead to the conclusion that the Tribunal's findings are in some way impugned or invalidated. It was open to the Tribunal to conclude, as it did, that it was not satisfied that the appellant was a wanted Naxalite and it was not satisfied that the appellant had a well-founded fear of persecution in India. 18 A second ground of appeal raised on behalf of the appellant went to the related question whether the Tribunal had fallen into error by consulting independent country information about the Naxalite movement. It is not entirely clear to me that this is a separate point. In any event, I consider that the accuracy of the country information was a question for the Tribunal. The written submissions filed on behalf of the appellant do not make any submission beyond those I have already addressed in this regard, and do not identify any error by either the Tribunal or the Federal Magistrates Court. 19 A third ground of appeal raised on behalf of the appellant, both in writing and orally, concerned the claim that the Tribunal exceeded its jurisdiction by making findings of a technical nature concerning the reliability of certain documents relied upon by the appellant. In his reasons for decision, the Federal Magistrate addressed this issue in the context of dealing with complaints that were described as being based on the concept of 'Wednesbury unreasonableness'. It made observations about the documents from the perspective of an inexpert eye. The matters on which it made comment were obvious on the face of the documents. These observations by the Tribunal fell squarely within its fact-finding province. They involve no jurisdictional error. Further, the views expressed by the Federal Magistrate regarding these matters disclose no error. 21 The last ground raised on behalf of the appellant, in writing and orally, also appeared to traverse the first and central issue concerning the appellant's political affiliations and their non-violent nature. The written submission was to the effect that that the Tribunal had failed to assess whether there would be a real chance of facing persecution. The basis for this submission seemed to be the contention that the Tribunal wrongly assessed the appellant's political affiliation and the nature of the Naxalite movement. I have addressed this issue above. If a separate point was being made by this submission, I do not consider that it gives rise to any error in the reasons or conclusions of the Tribunal or the Federal Magistrate. 22 A number of other grounds were argued before the Federal Magistrates Court. A ground of bias was also referred to in the notice of appeal, although it was not developed in either written or oral submissions. The Federal Magistrate noted that an allegation of bias had not been raised in the application. Before the Federal Magistrates Court, the appellant had submitted that there was merely a trend of bias, although the point seems to be more strongly expressed in the notice of appeal. 23 Having carefully read the decisions of the Tribunal and the Federal Magistrate, I am not satisfied that there is any substance in the assertion that the Tribunal and/or the Federal Magistrates Court was biased. As to the other grounds raised and argued before the Tribunal, some have been alluded to incidentally in the course of submissions on behalf of the appellant. In my opinion, none of the other grounds that were raised before the Federal Magistrates Court disclose any error on the part of the Tribunal. 24 The core of this case on appeal is that the Tribunal should not have come to the factual conclusions it did, and in particular, it should not have reached the adverse conclusions it did concerning the credibility of the appellant's claims. That case does not raise or identify any error, either by the Tribunal or the Magistrate, capable of supporting this appeal. 25 Accordingly, I will order that the appeal be dismissed and the appellant to pay the costs of the second respondent of the appeal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

protection visa appeal from decision of federal magistrate whether tribunal committed jurisdictional error where findings of credibility by the tribunal open to it whether tribunal erred in relation to question of 'real chance' of persecution whether tribunal erred in applying test of 'serious harm' under s 91r(1)(b) of migration act 1958 (cth) whether tribunal's reliance on country information constituted error whether tribunal was biased no error established migration

The Tribunal affirmed the decision of the respondent's delegate to refuse the appellant a protection visa (class XA). 2 According to the Tribunal, the appellant is a citizen of India and from a Hindu family. His parents are participants in religious activities and supporters of a Hindu political party. The appellant arrived in Australia on 8 December 1998. While in Australia the appellant converted to Islam. On 15 March 2001 the appellant applied for a protection visa claiming to have a well-founded fear of persecution if he returned to India for reasons of religion. 3 In his protection visa application, the appellant gave details of his education and work history. Information as to his education took the form of a list of the institutions he had attended and the dates of his attendance. The institutions listed were the appellant's high school, the National Institute of Sales and Marketing in Delhi and the Sydney International College of Business. He also listed his employers, dates of employment and salaries. 4 A delegate of the respondent refused to grant a protection visa on 9 April 2001. On 31 March 2003 the Tribunal affirmed the decision of the delegate. The first aspect was dismissed by the Tribunal after consideration of the relevant country information. 6 The Tribunal then considered how the appellant's status as a Muslim who had converted from Hinduism affected his claim for fear of persecution. Specifically the Tribunal took into account the appellant's individual circumstances, as he came from a practicing Hindu family with ties to Hindu organisations and had certain relatives he considered "extremist". The Tribunal found that the appellant might be ostracised by his family and they might press him to undo his conversion. However, the Tribunal concluded that this would not constitute serious harm for the purposes of s 91R of the Migration Act 1958 (the Act). 7 In addition, the Tribunal found that the appellant could avoid the harm he claimed to fear from relatives and others who knew him in Delhi by relocating either within Delhi or elsewhere within India. In finding that he could relocate, the Tribunal said "I consider that it would be reasonable for the applicant to relocate having regard to his circumstances: he is well-educated and has demonstrated sufficient personal resourcefulness to enable him to settle here. " The Tribunal was not satisfied that there was a real chance that the appellant would face persecution by reason of his adoption of Islam and found that his fear in that regard was not well-founded. Consequently, the Tribunal concluded that the appellant was not a person to whom Australia has protection obligations under the Refugee Convention. 8 In May 2003 the appellant filed an application for review of the Tribunal's decision in the South Australian Registry of this Court. On 11 December 2003 the appellant filed a notice of discontinuance. On 12 December 2003 Mansfield J granted leave to discontinue that proceeding. 9 On 24 May 2004 the appellant filed an application in the New South Wales Registry of the Federal Magistrates Court seeking judicial review of the Tribunal's decision. The matter was subsequently transferred to this Registry. The Federal Magistrate dismissed the application. The appellant appeals from his Honour's judgment. 10 Before the Federal Magistrate, the appellant's primary argument was that the Tribunal, by considering the possibility of relocation and concealing his whereabouts from relatives, was requiring him to avoid harm by acting discreetly in the practise of his religion. The appellant argued this was an error of law as identified by the High Court in S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473. 11 The Federal Magistrate found that the Tribunal's decision was not based on a finding that the appellant would be required to modify his behaviour. Rather, his Honour held that the Tribunal had determined that wherever the appellant chose to live in India he could continue the normal practice of his religion without fear of persecution. Also, the Federal Magistrate concluded that the Tribunal's finding about relocation was an alternate ground relating to the appellant's fear of coming to serious harm on account of his conversion. On this view, the Tribunal had independently concluded that the appellant's fears of persecution relating to his conversion were not well-founded. The Federal Magistrate concluded that while "[i]t may be possible to interpret the Tribunal's question [that he could move and not tell his relatives] as involving the proposition that the appellant could modify his behaviour, it was not the basis of the tribunal's findings in its reasons". 12 The first respondent also argued before the Federal Magistrate that the appeal was barred by Anshun estoppel. Having found on other grounds that the appeal should be dismissed, the Federal Magistrate did not need to consider this ground. 13 In a notice of appeal dated 21 February 2006 the appellant submitted two grounds of appeal. The first ground challenged the Federal Magistrate's finding that Tribunal's decision did not necessitate any change of behaviour by the appellant in the normal practice of his new religion, particularly, "in circumstances where the change in location would require the appellant to be discreet in terms of his religious and family history". The second ground of appeal was that the Federal Magistrate erred in finding that the relocation finding was not the primary basis of the Tribunal's decision. At the hearing of the appeal, counsel for the appellant abandoned both these grounds of appeal and relied instead on a new ground set out in an amended notice of appeal filed on 18 May 2006. 14 This new ground was that the Tribunal breached s 424A of the Act. The appellant now claims that the Tribunal erred when it "did not disclose certain adverse information as required by s 424A(1)" and that this information was ... "[t]he educational history of the [appellant] provided in his application for a protection visa". 16 The appellant submitted that a breach of s 424A is jurisdictional error whenever the Tribunal fails to disclose information that forms part of its reasons. Citing SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (" SZEEU ") at [158] per Weinberg J and [225] per Allsop J, the appellant argued that there is error even where the information concerned only a minor and subsidiary part of the reasons. 17 The appellant argued that the education information provided in the original protection visa application was not subject to the exception in s 424(3)(b) of the Act. Moreover, the appellant submitted that the mere adoption at the hearing of any information contained in the visa application would not bring that information within the s 424(3)(b) exception. 18 At the hearing, the appellant conceded that, at the hearing before the Tribunal, he had done more than simply adopt information concerning his educational experiences in Australia. This was because, in response to the Tribunal's questioning, the appellant had actively given details of his education in Australia. However, the appellant distinguished information about his education in India from that about his education in this country. In the appellant's submission, in relation to his Indian education, he did no more than adopt the information provided earlier in his protection visa application. The appellant noted that his answers regarding his education in India were in response to leading questions from the Tribunal where, in effect, he was asked to do no more than confirm the details in his original application in March 2001. Further, the appellant noted that the Tribunal had not told him of the potential significance of this information for its decision-making. In this connection, he referred to Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 (" Al Shamry ") at [40]-[41] per Merkel J. 19 The appellant relied on SZEEU at [17] and [20] per Moore J and NAZY v MIMIA [2005] FCA 744 at [37] per Jacobson J for the proposition that information does not fall within the exception of s 424A(3)(b) unless it is put forward as evidence in chief and the applicant is aware of the significance of the information. Thus, in the appellant's view, his brief responses to leading questions regarding his education in India did not mean this was information given for the purpose of the application for review under s 424A(3)(b). 20 The appellant contended that the Tribunal relied on his educational history as a basis for its finding concerning the reasonableness of his relocation. The appellant submitted that the relocation finding was "an over arching basis of the decision". Therefore, according to the appellant, the Tribunal fell into error when it did not provide the educational history information to him as required by s 424A(1). 21 In support of his application to amend his notice of appeal the appellant noted that SZEEU had not been delivered at the time of the hearing before the Federal Magistrate. The appellant suggested that it is unlikely that any further evidence would have been led below if the new ground had been argued there. Moreover, the appellant suggested that any prejudice to the first respondent could be cured by allowing her to tender a transcript of the Tribunal hearing. 22 The first respondent submitted that the Court should not grant leave to amend the notice of appeal. The first respondent noted that although SZEEU had not been decided at the time of the hearing before the Federal Magistrate, SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and Al Shamry had been decided at that time. Further, the first respondent argued that leave to amend should be refused because the new ground of appeal was futile. 23 The first respondent did not concede that the relevant Tribunal finding concerning relocation was based on the information provided under the heading "Education" in the appellant's visa application. The first respondent argued that the appellant had given more detail about his educational background at the hearing before the Tribunal than he had in his original application. For example, it was only at the hearing that he said that he had completed his business studies at the Sydney International College. Similarly, he explained to the Tribunal that the National Institute of Sales and Marketing was more like a college than a school. In these circumstances, the first respondent contended that the appellant had given the information to the Tribunal and s 424A(3)(b) applied. 24 The first respondent rejected the suggestion that a distinction could be drawn between information given in response to leading and non-leading questioning. The first respondent noted that the educational information in the application was very brief. The appellant had simply listed institutions and dates of attendance. Thus, it was possible to give this information to the Tribunal in response to simple leading questions. 25 The first respondent contrasted this case to the facts of SZEEU . In SZEEU , the Court had considered the case of SZBMI who, in an airport interview upon arrival, had provided information concerning his flight from his home country. Before the Tribunal, he had affirmed that this statement was accurate. The Court, at [20] per Moore J and [157] per Weinberg J, held that the adoption of the earlier statement at the hearing before the Tribunal did not render it information provided by him in his application for review. The first respondent argued that this case is different because, rather than adopting a large statement in which a specific item of information was contained, the appellant had specifically discussed his educational background with the Tribunal. According to the first respondent, it followed that the information fell within the exception of s 424A(3)(b). 26 Although it was discussed before the Federal Magistrate, neither party raised the issue of Anshun estoppel in this Court. The court may allow such a ground to be argued on an appeal if it is satisfied that it is expedient in the interests of justice to allow the new ground to be argued and determined: see VAAC v Minster for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 (" VAAC ") at 177 [26] per North, Merkel and Weinberg JJ. In this case, whether or not leave ought be granted depends very largely on the prospects of success of the proposed new ground. Since I could form no view on the prospects of success without hearing argument, I heard counsel for the applicant and the first respondent on the proposed new ground, without ruling on the application for leave. The first respondent's counsel did not oppose this course. 28 Section 424A of the Act requires the Tribunal to give the applicant, in the way the Tribunal considers appropriate, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, to ensure, as far as reasonably practicable, that the applicant understands why it is relevant, and to invite the applicant to comment on it: s 424A(1). The information and invitation must be given by a prescribed method: s 424A(2). Section 424A does not apply to certain kinds of information, being information that is not specifically about an applicant and is just about a class of persons, or information that the applicant gave for the purpose of the application, or non-disclosable information: s 424A(3). 29 The Court in SZEEU accepted that the word 'information' in s 424A refers to "knowledge of relevant facts or circumstances communicated to or received by the Tribunal": see SZEEU at [23]-[25] per Moore J, at [94], [157], [171] per Weinberg J and [205] per Allsop J. I accept that the Tribunal's knowledge of the educational institutions and dates of attendance and employment history set out in the appellant's visa application (referred to below as educational information) could constitute knowledge of relevant facts or circumstances communicated to or received by the Tribunal and therefore 'information' for the purposes of s 424A of the Act. It was not suggested that the Tribunal had given the applicant particulars of such information as s 424A(1) would require if it applied. 30 SZEEU contains various discussions of the expression "a part of the reason" in s 424A: see [164] per Weinberg J and [216]-[217] per Allsop J. As Allsop J said at [216], "[i]t is only necessary that the information be a part of the reason". In this case, however, the appellant has not established that the educational information set out in his visa application was "a part of the reason" for the Tribunal's decision, because other detailed information on the same subject was specifically provided to the Tribunal at the Tribunal hearing. The information given at the Tribunal hearing fell within the exclusion in s 424A(3)(b) of the Act. 31 For present purposes, I accept that the Tribunal's finding that it was reasonable for the appellant to relocate because he "is well educated and has demonstrated sufficient personal resourcefulness to enable him to settle here" was a part of the reason for the Tribunal's decision. However, consideration of the transcript of the hearing before the Tribunal makes it clear that the appellant specifically gave his educational and employment history to the Tribunal at that hearing. 32 At the hearing before the Tribunal, the Tribunal member asked questions regarding the appellant's educational and employment history. In response to the question "You came as a student did you? " the appellant explained that he had been studying business management at Sydney International College and that he had completed his studies there. He was then asked what he was studying at the time of the hearing. The appellant answered that he was studying commercial cookery at the Australian College of Hospitality. 33 Upon the basis of the information appearing in his protection visa application, the Tribunal member also asked him about his employment in India. For example, she asked, "because in your application it says that from September '96 to August '97 you worked as a sales executive for SR Traders, is that right? " The appellant affirmed that it was. 34 Later, the Tribunal member and the appellant discussed the appellant's schooling in India. The appellant confirmed, in response to a direct question on the matter, that he had attended high school and had graduated in 1996. He also confirmed that he had attended the National Institute of Sales and Marketing for one and a half years. The appellant explained that the institute was like a college. 35 It is clear that the appellant specifically provided the Tribunal with his educational details. I reject the appellant's submission that the information does not fall within s 424A(3)(b) because it was given in response to questions in the nature of 'cross-examination'. The Tribunal's questions were specific and arose, naturally enough, from the appellant's visa application. The appellant gave direct answers. The relevant information was simple and could be easily given in response to such questions. Further, SZEEU provides support for the proposition that where an applicant affirms a specific fact before the Tribunal that information will be covered by the exclusion in s 424A(3)(b). Thus it was information comprehended by s 424A(3)(b) even though it was information also derived from an alternative source. The appellant gave the Tribunal information concerning his educational and employment history at the Tribunal hearing, although the Tribunal had reference to the appellant's visa application in discussing some aspects of his history with him. 36 I reject the appellant's submission that at the Tribunal hearing he merely adopted the education information in his visa application. This was not a case where an applicant merely adopted the contents of a document as a whole and in so doing was said to have conceded the correctness of items of information within it: contrast SZEEU at [15] and [17] per Moore J. It may be recalled that in SZEEU the Full Court held that the applicant's global adoption of an earlier statement (which contained the 'flight information') did not bring the flight information before the Tribunal for the purposes of s 424A(3)(b) of the Act. The present case is entirely different from the 'flight information' in SZEEU . It is plain enough from the transcript of the Tribunal hearing that the appellant separately and specifically gave detailed information concerning his education and employment to the Tribunal. It was open to the Tribunal on the basis of this information, which clearly fell within s 424A(3)(b), to find that the appellant was well-educated and resourceful so as to make relocation reasonable. Accordingly, the appellant's proposed new ground, which asserts breach of s 424A(1) of the Act, is untenable. I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

alleged breach of s 424a of the migration act whether information was within exemption of s 424a(3)(b) the relevant information was given to the tribunal appeal dismissed migration

The bids are governed by the takeover provisions in the Corporations Act 2001 (Cth). The application was brought on last Thursday and, for good reason, the parties requested that my decision be handed down today. That I am in a position to do so is in no small measure due to the comprehensive submissions by counsel. Necessarily, however, my reasons will be brief. 2 Pendant Software Engineering Pty Ltd, whose associate Pendant Properties Pty Ltd holds 30.54 per cent of the shares in Tower Software Engineering Pty Ltd (an unlisted company which has more than 50 members), has made an off-market bid to acquire all of the remaining shares and all of the options for shares in Tower. It sent its bidder's statement (which contained the terms of its offer) to Tower. Tower's board immediately resolved that Pendant could send the statement to shareholders and option holders as soon as it chose. Item 6 of s 633 of the Corporations Act provides that a bidder's statement is to be sent to all relevant security holders within 14 to 28 days after the statement is sent to the target but that the directors may shorten the period. Following the receipt of the bidder's statement Equity Partners One Pty Ltd, which held 14.43 per cent of the capital, accepted the offer in relation to its shares. 3 Mr Hoff, a major shareholder of Tower, applied to the Takeovers Panel for a declaration under s 657A of the Corporations Act that the board's resolution and the acceptance by Equity Partners of Pendant's offer were unacceptable circumstances. The Panel was minded to make a declaration of unacceptable circumstances but for the fact that Pendant agreed to give the Panel certain undertakings. 4 The Panel contends that Pendant has breached its undertaking and seeks an order under s 201A of the Australian Securities and Investments Commission Act 2001 (Cth) directing Pendant to comply with the terms of the undertaking. On this application, none of the facts are in dispute. The parties are, however, at loggerheads as to the requirements imposed on Pendant by the undertaking and whether it has satisfied those requirements. The resolution of this dispute depends upon the meaning to be given to the undertaking. 5 There is an alternative order sought by the Panel. If the construction of the undertaking goes against it, the Panel seeks an order extending the time within which to make a declaration of unacceptable circumstances. Section 657B of the Corporations Act sets out the time within which a declaration may be made. That time has passed. The section goes on to provide that the court may extend the period on the application of the Panel. That application may be made after the prescribed time has elapsed. The assumption that underlies the application for an extension of time is that the Panel has power to further consider, or to reconsider, the application. Whether that assumption is correct is in issue. 6 The problem has come about in the following way. The Constitution of Tower provides (by r 120) that shares may not be sold to a person who is not a member if a member is willing to purchase them (r 120.1). A member wishing to sell his shares must give notice to Tower to that effect and nominate the price he is willing to accept for his shares (r 120.2). Members have one month within which to purchase the shares at the nominated price (r 120.3). If the shares are not purchased by a member within that time then they may be sold to a non-member at any time during the next three months at a price not less than the nominated price (r 120.6). 7 On 23 December 2005, Equity Partners gave notice to Tower that it wished to sell its stake in the company for $1.45 per share. Because it was near Christmas, Equity Partners and Tower agreed to treat the notice as having been received by Tower on 1 January 2006. For the purposes of this application I will assume, as have the parties, that this agreement was effective. On the deemed day of notification, 1 January 2006, Tower shareholders were notified of Equity Partner's offer to sell its shares. No shareholder took up the offer. Consequently, Equity Partners was free, until 1 May 2006, to sell its shares to a non-member for $1.45 per share or more. 8 Pendant made its off-market bid on 18 April 2006, being the day on which it lodged a copy of its bidder's statement with the Australian Securities and Investments Commission. The bidder's statement contained the offer. It was a cash offer: the offer price was $1.45. The closing date was 18 July 2006. In the ordinary course the offer would have been sent to shareholders within 14 to 28 days of the receipt by Tower of the bidder's statement. At a meeting of the Tower board held on 18 April a director, Mr Frost, who was also a director of Pendant, tabled a copy, or a draft, of the bidder's statement and moved a resolution that Pendant be permitted to immediately distribute the bidder's statement to shareholders. The board passed the resolution. The result was that if it acted quickly Equity Partners could accept the Pendant offer without first offering to sell its shares to other shareholders. If accepted, there could be no rival bids for the control of Tower. All other shareholders could only accept the Pendant offer after having first offered to sell their shares to other shareholders in accordance with r 120. 9 Pendant began sending the bidder's statement to shareholders on 19 April 2006 and completed the distribution within the three days required by s 633. Equity Partners received its copy on 19 April 2006. It signed the acceptance and transfer form and sent it to Pendant the next day by express post. The total consideration payable for Equity Partners' shares was $6,525,000. With these shares Pendant's interest (including that of Pendant Properties) in the company would increase to 44.97 per cent. 10 Pendant's offer was declared to be free of conditions on 1 May 2006. There was a meeting of the Tower board three days later. At that meeting Mr Frost tabled the signed transfer of Equity Partner's shares and moved that the transfer be registered. The board resolved that all transfers received by Pendant under its take-over bid be registered subject to certain conditions. The conditions included the following: "[that registration] would not otherwise involve a breach of duty on the part of [the] Directors and is not otherwise unlawful; and no higher offer is made for Tower Software Engineering Pty Limited's shares during the Offer Period (as extended under the Corporations Act ). Pendant sought an order correcting the register. The proceeding remains on foot. 12 Mr Hoff's application to the Panel for a declaration of unacceptable circumstances was made on 25 May 2006. He put forward several bases for making the declaration. They included allegations that the bidder's statement was misleading in several respects, that there was non-disclosure of material facts and that there was a secret agreement between Pendant and Equity Partners entered into before the take-over bid that Equity Partners would sell its shares to Pendant. Mr Hoff also relied upon the resolution to abridge the time for dispatching Pendant's bidder's statement to shareholders. He contended the result of this resolution was to give effective control of the company to Pendant "in an uncompetitive and ill-informed market". 13 The Panel considered the application. It published what it described as its Preliminary Decision on 9 June 2006. In this decision the Panel rejected some of Mr Hoff's complaints. It did not deal with others. However, the Panel stated that the board's decision to consent to the early dispatch of the Pendant bidder's statement "would justify a declaration of unacceptable circumstances, having regard to the effect of that decision on the acquisition by Pendant Software of Equity Partners' shares in Tower, and on the control, or potential control, of Tower. " This was because there was not "an efficient competitive and informed market for voting shares in Tower". 14 Although the Panel said that it was minded to make a declaration as well as to consider an order cancelling Equity Partners' acceptance of the Pendant offer, it went on to say that there might be scope for the parties to offer undertakings "which may avoid the need for further proceedings and for any declaration or orders". In particular, the Panel said that "Pendant Software may be able to address any concerns that the Panel has (as well as concerns it would be likely to have if Mr Hoff's allegations were made out after further proceeding)" if it received an undertaking from Pendant. It will not re-present the Equity Partners transfer for registration or otherwise seek to become a member of Tower before 14 July 2006. It will present the Equity Partners transder to Tower for registration before 5.00pm on 14 July 2006. 16 On 15 June 2006, the Panel handed down its decision on Mr Hoff's application. The decision was that the Panel would accept Pendant's undertaking and for that reason found that "it is not against the public interest for the Panel to decline to make a declaration of unacceptable circumstances". 17 The Panel explained that "if it had not been for the Tower Board's decision to consent to early dispatch, Equity Partners would not have been able to accept the Pendant Software Offer without giving a further notice under Rule 120 of Tower's constitution. In that event, there would have been a period of at least a month in which any potential rival bidder could have made a bid and had a viable prospect of acquiring control. The truncating of the time that would otherwise have been available to a competitive bidder to make a bid for control of Tower was the fundamental reason for the Panel's concerns in this matter, as described in the preliminary decision letter. The terms of the Undertaking provide an equivalent opportunity for any potential rival bidder to make a takeover bid and acquire the Equity Partners' shares if Pendant Software does not match the rival bid. Accordingly, in the circumstances of the current proceedings, the Panel considers that the Undertakings are sufficient to address the unacceptable circumstances arising from the decision to consent to early dispatch and to ensure that there is an efficient, competitive and informed market for control of Tower. The bid was by Quadrant Private Equity No.1 LP, a company connected to Mr Hoff. Quadrant does not hold any shares in Tower, but by reason of its connection with Mr Hoff, has a relevant interest in his shares in the company. 19 Quadrant lodged its bidder's statement with ASIC on 30 June 2006. The offer was to acquire all Tower shares for $1.60 per share. The offer is scheduled to close on 22 September 2006. The offer was conditional, the key conditions being that Quadrant receive acceptances for at least 44 per cent of Tower shares and that there be no material adverse change in relation to Tower. 20 The bidder's statement was sent to shareholders on 14 July 2006. That gave shareholders sufficient time within which to comply with r 120 if any of them wished to accept the offer. The dispatch of the conditional offer to shareholders did not, however, trigger Pendant's undertaking. Thus, at that point, Pendant was not required to increase its offer or accept the bid for the Equity Partners' shares. Nonetheless, on 21 July 2006, Pendant varied its offer to match the price offered by Quadrant. 21 Quadrant reacted in the way one would expect an offeror who wished to acquire the shares of a target would react in a competitive market. It immediately (that is on 21 July 2006) varied its offer by increasing the offer price to $1.80. Then, no doubt realising that it could not acquire the Equity Partners parcel unless its own offer became unconditional on or before 28 July 2006, Quadrant declared its offer to be free from all conditions one day earlier (on 27 July 2006). 22 The principal issue between the parties is whether the undertaking requires Pendant to increase its offer to $1.80 per share or to give notice under r 120 that it will sell the Equity Partners' shares to other shareholders at a price not higher than $1.80 per share, and if the shares are not purchased at that price to accept Quadrant's offer for the parcel. The Panel contends that this is what Pendant is required to do. Pendant says the opposite. The resolution of their dispute depends only upon the construction to be given to the undertaking. 23 This is a convenient point at which to indicate the approach I will adopt on the construction question. First, I accept as appropriate the Panel's approach to the drafting of undertakings, which is that they should be "as simple and direct as possible": Takeovers Panel, Guidance Note 4 at para 4.23. This is good common sense. I will adopt the same approach to construction. There will be no pedantic approach. 24 Second, I do not think it appropriate, as Pendant contends and as Bainton J held in Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd (Unreported, Supreme Court of NSW, 2 July 1997) in relation to an undertaking given to the ACCC under a different statute, that the undertaking "should be construed contra proferendum [ sic ]", the proferend being the person seeking to enforce the undertaking. By this contention I take Pendant to be saying that the undertaking should be strictly construed so that Pendant is not obliged to perform any act unless it is absolutely clear from the terms of the undertaking that the act must be performed. I prefer a different approach. Undertakings of the present kind are given by business people or organisations who are well capable of looking after their own interests. More often than not they are assisted by first rate legal advisors. In such a case it is, in my opinion, wrong to place a strained construction on the words of an undertaking or to prefer the position of one party over another. 25 Third, in deciding what is meant by the words of an undertaking it is permissible to have regard to the reasons given by the Panel for requiring the undertaking and what the Panel perceived to be its effect. This is the position in the case of orders made by a court (as to which see Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78) and it should be the same in relation to an undertaking given under s 201A , especially if the undertaking was required by the Panel. Put another way, the meaning of an undertaking is to be determined having regard to its stated purpose. 26 Fourth, if an undertaking is of doubtful meaning and it is possible to give the undertaking a meaning that will avoid unintended consequences or consequences that are unreasonable, that meaning should be adopted. If that results in a construction that it is not necessarily grammatically accurate, so be it. But this approach will not permit a meaning to be given to an undertaking which is different from its clear meaning. In this connection it was not suggested that I should apply by analogy the approach developed for the construction of statutes under which it is permissible to modify the literal meaning of words in order to avoid absurd or unreasonable results: see for example: Saraswati v The Queen [1991] HCA 21 ; (1991) 172 CLR 1, 21-23. 27 Turning now to the undertaking itself, relevantly, Pendant's undertaking in the case of a "Superior bid" (a defined expression) is to increase its offer so that it is "at least equal to that offered under the Superior bid" (cl D(c)) or, if the Superior bid is not made by a member of Tower, to give a notice under r 120.2 offering to sell the Equity Partners' parcel "to shareholders at a price per share not higher than the price offered in the Superior bid" and if they are not taken up by shareholders to accept the Superior bid (cl D(d)). The question in each case is how does one determine the price of the Superior bid? 28 It is common ground that Quadrant's off-market bid is a Superior bid. It is a Superior bid because the offer made under the bid was for a cash price of more than $1.45 per share, the offer was sent to shareholders on 14 July 2006 and the offer became free of all conditions before 28 July 2006. That is, all the conditions specified in cl D(a) and (b) were satisfied. 29 The construction question, as I see it, is whether the price (which of course must be more than $1.45) "offered under [or "in"] the Superior bid" is a reference only to the first price offered to shareholders on or before 14 July or to any subsequent increase in the offer price. 30 Mr Glick SC's submission is that "variations were not the subject matter of the undertaking at all" and that the only price which Pendant has to match is the offer price specified in the offer when first sent to Tower shareholders. I reject without any hesitation the first element of this submission. I will explain why by reference to an example, not necessarily an example which would occur, but one that might have occurred. 31 Let it be assumed that a bidder sends an offer to shareholders before 14 July 2006 and the offer is to purchase Tower shares for $1.45 per share. This is not a relevant offer because the offer price is not "more than $1.45". Let it be further assumed that the offer is varied by increasing the offer price to, say, $1.60 and notice of that variation as required by s 650D of the Corporations Act is sent to shareholders on or before 14 July 2006. I have no doubt that clause D(a) would be satisfied. The reason is that I read the words "offers" when first used in clause D to refer not only to the initial offers to shareholders but also to any varied offers provided the variation increases the offer price to more than $1.45 per share. There is no contextual reason why this construction is not available and to reject this construction would be absurd. 32 The rejection of Mr Glick SC's submission that variations are to be disregarded does not, however, resolve the dispute. The true question is whether a variation in the offer price made after 14 July is a candidate for the price "offered under [or "in"] the Superior bid". 33 To achieve one of the Panel's stated objects for the undertaking namely that of creating a competitive market in which a rival bidder has a prospect of gaining control of Tower it would be wrong to exclude post 14 July 2006 variations. This notwithstanding that is not the effect of the undertaking, in my opinion. It is, I think, clear that "the amount offered under [or "in"] the Superior bid" must be a reference to the amount offered to shareholders on or before 14 July 2006. This is the plain meaning of the words and they cannot be rewritten to accord with the Panel's intention. 34 This anomalous position has come about, I suspect, because another of the stated objects of the Panel for the undertaking was to restore the one month period that would have been available to a rival bidder if the board's resolution had not been passed. Put another way, and adopting the language of the Panel, it wished to provide a rival bidder with an "equivalent opportunity" to make a rival bid. The problem is that the provision of an "equivalent opportunity" (creating a period of approximately one month between the giving of the undertaking on 16 June 2006 and the date specified in cl D(a) for a rival bidder to make a bid) was not sufficient to establish a competitive market, as subsequent events have shown. 35 The result is that the Panel is not entitled to an order under s 201A(4)(a). 36 It is necessary, therefore, to consider the Panel's alternative claim for an order for an extension of time within which to make a declaration of unacceptable circumstances. As I have earlier indicated, here the principal issue is whether there is any utility in making such an order. There will be utility only if the Panel is able to proceed with Mr Hoff's application. 37 In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 it was held that if an administrative decision-maker commits a jurisdictional error in reaching his decision, the decision is liable to be set aside but, whether set aside or not, the decision-maker can correct the error in a later decision. So, if the Panel committed a jurisdictional error in arriving at its decision that the undertaking proffered by Pendant rendered it inappropriate to make a declaration of unacceptable circumstances, it could still deal with the application. It would, of course, be necessary, if it went ahead, for the Panel to release Pendant from the earlier undertaking. 38 It is not, however, only in the case of jurisdictional error that an administrative decision-maker can correct error. For example in the Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 Beaumont J said (at 667) that "where it appears to a decision-maker that his or her decision has preceded upon a wrong factual basis, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision. There the Medical Practitioners Board of Victoria, a statutory body, conducted an informal hearing into the professional conduct of a doctor and made a finding about that conduct but, by mistake, had overlooked some evidence. There was no express provision in the relevant statute allowing the board to set aside its finding. Nevertheless, Gillard J said at [48] that "if a decision made by a statutory body, which was clearly made in error or as a result of some obvious mistake, it is an offence to common sense to suggest that the only avenue open to correct the error is to appeal, state a case, or seek judicial review. " He went on to say that an administrative decision-maker should be entitled "to correct an obvious error by revisiting the process". Gillard J accepted that if the statute under which the administrative decision-maker was acting prevented the decision from being re-opened then of course it could not be. 40 There is a passage in the speech of Lord Reid in Ridge v Baldwin [1963] UKHL 2 ; [1964] AC 40, 79 which is to a like effect. Lord Reid said: "I do not doubt that if an officer or body realises it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid. " In Bhardwaj Gleeson CJ referred (at 603) to this passage with apparent approval but noted that the general proposition stated by Lord Reid "must yield to the legislation under which a decision-maker is acting". To a like effect are the comments of Gummow J in Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, 218-219. See also Steward v Director of Public Prosecutions [2004] 1 WLR 592. 41 There is yet another basis upon which an administrative decision-maker might still deal with a matter that appears to have been finalised. In Chandler v Alberta Association of Architects [1989] 2 SCR 848 Sopinka J, who delivered the decision of the Supreme Court of Canada, said (at 862): "If the Tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. Contrary to the Panel's stated view, the undertaking proffered by Pendant does not in fact dispose of all the matters raised by the application. I mean by this that the undertaking, which has the limited effect I have given it, did not create a situation where there could be competitive bidding for the shares in Tower, and this may be the only appropriate remedy if Mr Hoff can make out some of his complaints. 43 In any event, it is clear that the Panel has made an important mistake in the effect of the undertaking. It is not necessary to determine whether the mistake is one of fact (the meaning of words in the undertaking) or one of law (how the undertaking is to be applied to the known facts). It is enough for me to hold (as I do) that the mistake is of such importance that it warrants the Tribunal pressing ahead with the application. 44 There is nothing in the legislation which precludes the Panel from proceeding with the application in the present circumstances. 45 For this purpose the Panel should be granted an extension of time within which to make a declaration of unacceptable circumstances. It seeks an extension for 14 days. The Panel has indicated that if the extension is given and a declaration is in due course made it will not make an order under s 657D(2) of the Corporations Act cancelling the contract between Equity Partners and Pendant if Equity Partners has already dispersed the purchase price. I will make an order to that effect as the price of obtaining the extension. 46 I will hear the parties on the precise form of orders to be made. One order will be to join Mr Hoff as a defendant. He has indicated his consent to such an order being made. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

takeovers panel application for declaration of unacceptable circumstances undertaking given pursuant to s 201a of the australian securities and investments commission act 2001 (cth) meaning of undertaking enforcement. takeovers panel hearing concluded on undertaking being given decision to accept undertaking made by mistake whether panel has power to make later decision. corporations administrative law

The first is an application by the respondent, the Commonwealth of Australia, for summary dismissal of the proceeding. The second is an application by the applicant, Mr Peter Spencer, for interlocutory relief. Since there is considerable overlap in the questions raised by the two applications, they have been heard together. 2 Mr Spencer is the holder of freehold or leasehold title in respect of some sixteen separate contiguous parcels of land that together comprise the property known as " Saarahnlee ", situated at Shannons Flat in New South Wales. He says that the effect of the Native Vegetation Conservation Act 1997 (NSW) ( the 1997 Vegetation Act ) and the Native Vegetation Act 2003 (NSW) ( the 2003 Vegetation Act ) (together the State Statutes ) has been to impose a prohibition or general restriction on the reasonable use of Saarahnlee, with the consequence that certain of his interests in Saarahnlee have been expropriated or acquired. 3 Mr Spencer claims that that expropriation or acquisition was effected or authorised by the Natural Resources Management (Financial Assistance) Act 1992 (Cth) ( the Financial Assistance Act ) and the Natural Heritage Trust of Australia Act 1997 (Cth) ( the Natural Heritage Act ) (together the Commonwealth Statutes ). He says that, therefore, they are laws with respect to the acquisition of property. However, because they do not provide for just terms, they are not authorised by s 51(xxxi) of the Commonwealth of Australia Constitution Act (Imp) ( the Constitution ). He says that therefore they are both invalid in so far as they effect or authorise an acquisition of his property. • Declarations that certain inter-governmental agreements ( the Inter-Governmental Agreements ) between the Commonwealth and New South Wales are invalid to the extent that they effected or authorised acquisitions of property from Mr Spencer other than on just terms. • An order that the Commonwealth return to Mr Spencer the private property said to have been acquired. Mr Spencer also claims damages for conversion of and trespass to his private property and damages arising from an alleged 'Constitutional tort' said to have been committed by the Commonwealth in taking Mr Spencer's private property. 5 As I understand Mr Spencer's contentions, his claims are wholly dependent upon the proposition that the Natural Heritage Act and the Financial Assistance Act are invalid to some extent. Before dealing with Mr Spencer's contentions, it is desirable to outline the allegations made by Mr Spencer in the current version of his statement of claim. (2.4) Saarahnlee is a terrestrial ecosystem or carbon sink with significant amounts of vegetation and soils that are available for immediate carbon sequestration. (2.5) The rights to the legal, commercial or other benefits of carbon sequestration by such vegetation and soils and of carbon abatement arising from retention of sinks in or arising from such vegetation and soils constitute property within the meaning of s 51(xxxi) of the Constitution . (2.6) The said vegetation and soils, including carbon rights, are a natural resource within the meaning of s 4 of the Financial Assistance Act and s 17 of the Natural Heritage Act and are native vegetation within the meaning of s 8 of the Natural Heritage Act. (2.7) By the State Statutes, a prohibition or general restriction was placed on the reasonable use of Saarahnlee, including the vegetation and soils and the carbon offset rights arising from the Carbon Sequestration Rights and Carbon Abatement Rights (together the Carbon Rights ). (2.8) Upon that prohibition or general restriction taking effect, some or all of the Carbon Rights were expropriated or acquired by the Commonwealth and an identifiable and measurable benefit or advantage was obtained by the Commonwealth for its purposes. (2.9) New South Wales assigned the Carbon Rights to the Commonwealth for the purposes of the Commonwealth. (2.10) No compensation has been paid or offered to Mr Spencer by the Commonwealth for the said expropriation or acquisition and just terms have not been provided to Mr Spencer in respect of such expropriation or acquisition and Mr Spencer has received no compensation from the Commonwealth for the taking of the Carbon Rights. (4) The Commonwealth passed the Financial Assistance Act for the purposes of giving effect to a proposed resource agreement contemplated between the Commonwealth and New South Wales called National Greenhouse Response Strategy and other agreements for the establishment of a cooperative statutory and administrative framework, arrangement or partnership between the Commonwealth and New South Wales. (5) The Commonwealth passed the Natural Heritage Act for the purpose of giving effect to the National Framework for the Management and Monitoring of Australia's Native Vegetation, the National Vegetation Initiative, and other agreements for the establishment of a cooperative statutory and administrative framework, arrangement or partnership between the Commonwealth and New South Wales so as to meet Australia's commitments under the Kyoto Protocol to the United Nations Framework Convention on Climate Change of 11 December 1997 ( the Kyoto Protocol ). (9.1) Authorised by the Commonwealth Statutes, the Commonwealth established a national framework of laws, being the State Statutes and the Inter-Governmental Agreements, relating to the management and use of land within Australia, which included provisions effecting the compulsory acquisition of land and rights to the reasonable use of land. (9.2) If the said acquisition or expropriation of Saarahnlee and the Carbon Rights were carried out by the Commonwealth directly, it would be required to provide just compensation to Mr Spencer. (9.2) The Commonwealth Statutes formed part of a scheme or device designed to avoid or over-reach the restrictions on the exercise of law making powers of the Commonwealth under s 51(xxxi) of the Constitution . (9.3) Accordingly, the Commonwealth Statutes and the Inter-Governmental Agreements were made for the purpose of taking property other than on just terms and are not authorised by s 51(xxxi) or any other provision of the Constitution . (10) New South Wales passed the State Statutes in furtherance of the Inter-Governmental Agreements and the provisions of the Commonwealth Statutes. (11) Since the passage of the State Statutes, Mr Spencer has been prevented and restricted from clearing native vegetation on Saarahnlee by reason of the State Statutes and the refusal of New South Wales to grant permission for any such clearing. (12.1-12.3) The provisions of the State Statutes, the Commonwealth Statutes and the Inter-Governmental Agreements have effected an acquisition of the Rights and Interests and have imposed a prohibition or restriction that has prevented the reasonable use of Saarahnlee by Mr Spencer, with the consequence that Saarahnlee is no longer commercially viable. (12.4-12.5) The Commonwealth has acquired the Carbon Rights and is using or threatening to use the Carbon Rights to its advantage, in that, if the Commonwealth did not have the ability to account for emission reductions from reducing land clearing in the period 2008 to 2012, it would need to take other measures to reduce emissions in order to meet its obligations under the Kyoto Protocol, which measures are likely to involve expense to the Commonwealth. (13) The acquisition of the Rights and Interests occurred pursuant to or as a result of the operation or effect of the Commonwealth Statutes otherwise than on just terms pursuant to the legislative and associated intergovernmental relationships described above. (14) The Commonwealth has taken no steps to ensure that the taking of the Rights and Interests and the Carbon Rights without Mr Spencer's consent or permission has been on just terms. (15) Accordingly, each of the Commonwealth Statutes is invalid in so far as it fails to provide for just terms for the acquisition of the Rights and Interests. (16) By virtue of the expropriation, trespass on, detinue in relation to, or conversion of the Rights and Interests by the Commonwealth under invalid legislation, Mr Spencer has suffered loss and damage in that he has been prevented from trading carbon property rights on any market and the Commonwealth has acquired the Carbon Rights. • Using the Rights and Interests in any way without compensation on just terms. The Commonwealth, on the other hand, seeks summary dismissal of the proceeding under s 31A of the Federal Court of Australia Act 1976 (Cth) ( the Federal Court Act ), on the basis that Mr Spencer has no reasonable prospect of successfully prosecuting the proceeding. Both motions raise essentially the same legal question, namely, whether or not the Commonwealth Statutes are invalid to some extent, as being laws with respect to the acquisition of property without providing just terms. 8 The Commonwealth's motion was filed on 26 July 2007. I first heard the motion on 31 August 2007, when I ordered that the then current statement of claim be struck out. However, I granted leave to Mr Spencer to file an amended statement of claim and adjourned the Commonwealth's motion part heard. An amended statement of claim was filed on 18 October 2007. On 1 November 2007, I ordered that the amended statement of claim be struck out but gave leave to Mr Spencer to file a further amended statement of claim. One was filed on 3 December 2007. 9 On 20 December 2007, I again granted leave to Mr Spencer to file a further version of the statement of claim and directed the Commonwealth to file a defence on or before 1 February 2008. I also directed the parties to endeavour to formulate separate questions of law thrown up by the pleadings and to exchange suggested questions. I stood over the proceeding and the Commonwealth's motion for further directions on 14 February 2008. 10 I gave those directions in the expectation that questions of law as to whether the Commonwealth Statutes are laws with respect to the acquisition of property could be formulated for determination on a final basis, rather than continuing to hear the Commonwealth's summary dismissal application. I considered that the then form of statement of claim disclosed a sufficiently arguable case that there had been an acquisition of property to enable separate determination of a question of law as to whether any such acquisition had been effected or authorised by the Commonwealth Statutes. I considered that the substantial costs that would be involved in a trial would be saved if the proceeding were ultimately disposed of on the basis of such a question of law. 11 A further amended statement of claim was filed on 24 December 2007 and the Commonwealth filed a defence on 1 February 2008. When the matter came on for directions on 14 February 2008, Mr Spencer opposed the formulation, for separate determination, of a pure question of law as to the validity of the Commonwealth Statutes. Rather, he formulated several factual questions that would have involved substantial hearing of the proceeding. I therefore considered that it was inappropriate to proceed further with the formulation of any separate questions. I granted Mr Spencer leave to file a further amended statement of claim no later than 28 February 2008 and directed the Commonwealth to file a defence to that statement of claim no later than 17 March 2008. The matter was listed for further directions on 2 April 2008. 12 Mr Spencer filed another version of his statement of claim on 28 February 2008. The Commonwealth filed a defence to that statement of claim on 17 March 2008. 13 However, in the meantime, Mr Spencer moved ex parte on 12 March 2008 for interlocutory relief pursuant to a motion purportedly filed on 11 March 2008. • Marking any claim or statement that it has achieved emission reduction levels that includes references to carbon emissions reductions or benefits achieved on or from private land, including Saarahnlee. • Using or otherwise dealing with carbon emissions reductions and offsets for the purposes of the Kyoto Protocol on any land other than State owned land or by means other than land affected by the Governments forced land use change on private land, including Saarahnlee. • Using the rights of or in respect of any carbon emission scheme, carbon sink, carbon trading scheme or market, which in any way incorporates, applies or uses or has any impact whatsoever on the Carbon Rights or Mr Spencer's property in the Carbon Rights or the ownership, or use, or possession of Saarahnlee, including the Commonwealth's claimed share of the greenhouse gas emissions reductions in respect of Saarahnlee. • Trading in carbon until the property rights of Mr Spencer in the carbon sequestered on or in relation to Saarahnlee are determined or offsetting or using as security any of such carbon. • Submitting greenhouse accounts to the Framework Convention (as described below) claiming emission levels that include the Carbon Rights. • Making any media statement regarding any of the carbon sequestered on or in relation to Saarahnlee other than to announce the new levels of the 1990 baseline 30% above by 2010 after deducting the entire reductions achieved by land use change on private land. Mr Spencer also claimed interim payments in respect of keeping his flock of sheep alive. 14 I indicated to counsel for Mr Spencer, in the course of hearing the application for ex parte relief, that I considered that the relief claimed in the motion may be misconceived. However, I gave Mr Spencer leave to file his motion returnable, for directions only, on 2 April 2008. Following directions hearings on 2 April 2008 and 10 April 2008, I directed that the Commonwealth's motion for summary dismissal and Mr Spencer's motion for interlocutory relief be heard together on 21 May 2008. I heard evidence and argument on both motions over several days in May and June 2008. 15 On 2 June 2008, in the course of the hearing, counsel for Mr Spencer provided to the Court and to the Commonwealth a form of proposed order which he said was a refinement of Mr Spencer's notice of motion. In response to a specific enquiry put to him, counsel for Mr Spencer confirmed that the only relief sought on the motion was that claimed in the form of proposed order. On that basis, I granted leave to Mr Spencer to file an amended notice of motion seeking relief in terms of that order. For reasons that have not been explained, Mr Spencer has not filed an amended motion. However, the interlocutory hearing has been conducted on the basis that the only interlocutory relief claimed by Mr Spencer is that set out in the form of proposed order. I have set out that relief above at [7]. 16 In the course of the hearing, Mr Spencer was also granted leave on several occasions to make further amendments to his statement of claim. The current version of the statement of claim was filed on 3 June 2008. On the other hand, for summary dismissal, the Commonwealth must show that Mr Spencer has no reasonable prospect of obtaining the relief so claimed. They are opposite sides of the same question. If there is a serious question to be tried, Mr Spencer must also show that the balance of convenience lies with the grant of the interlocutory relief claimed. 18 Where there are purely legal questions upon which a claimant for interlocutory relief must succeed in order to obtain final relief, it may be appropriate to determine those questions in the course of an interlocutory hearing. On the other hand, it would certainly be unusual to determine disputed factual questions at an interlocutory hearing. The Court will normally proceed on the basis that the evidence adduced by the claimant for interlocutory relief is accepted at its highest. Nevertheless, there must be evidence capable of supporting the ultimate findings of fact that must be made for the claimant to obtain final relief. 19 Section 31A of the Federal Court Act requires the Court to consider the question of whether there is a real issue of law or fact to be decided. The Court must conduct an enquiry into the merit of issues of law. While the enquiry should not necessarily be for the purposes of resolving the legal questions, that can be done. The object is not simply to determine whether the argument is hopeless but whether the argument is sufficiently strong to warrant the proceeding's going to trial. If the Court can resolve contested legal issues at a summary hearing, without undue delay, it may be preferable to do so in the interests of saving costs and time. Where there are real issues of law, the appropriate course is to accept submissions and hear argument, whereupon the Court can decide the issues without the need for a trial. Once the issues of law are resolved, it may be clear, one way or the other, whether the proceeding should be allowed to go to trial (see Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 , at [23] and [131]). 20 I propose to deal first with the question of Mr Spencer's prospects of success and then with the balance of convenience. In relation to his prospects of success, the essence of Mr Spencer's claim appears to be contained in paragraph (15) of his current statement of claim as summarised above. That is to say, an essential plank in his case is that each of the Commonwealth Statutes is a law with respect to the acquisition of property and is invalid because it provides for acquisition otherwise than on just terms. The allegation of invalidity is tied to the prayers for relief summarised in paragraph [4] above. • The Commonwealth Statutes. • The Inter-Governmental Agreements. • The State Statutes. I shall say something about each in turn. The Montreal Protocol resulted from the Vienna Convention for the Protection of the Ozone Layer 1985 . 23 Australia is also a party to the United Nations Framework Convention on Climate Change of 9 May 1992 ( the Framework Convention ). By the Framework Convention, the parties to it determined to protect the climate system for present and future generations. Article 2 provides that the ultimate object of the Framework Convention, and any related legal instruments that the Conference of the Parties may adopt, is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. • Formulate, implement and update programs containing measures to mitigate climate change by addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol. • Promote and cooperate in the development, application and diffusion of technologies, practices and processes that control, reduce or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal Protocol. • Promote sustainable management and promote and cooperate in the conservation and enhancement of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol. • Take climate change considerations into account in relevant social, economic and environmental policies and actions and employ appropriate methods with a view to minimising adverse effects on the economy, on public health and on the quality of the environment of projects or measures undertaken by them to mitigate or adapt to climate change. • To communicate periodically, in accordance with Article 12, detailed information on its policies and measures on the mitigation of climate change. 26 By Article 12.1 of the Framework Convention, each party agreed to communicate to the Conference of the Parties a national inventory of anthropogenic emissions by sources and removals by sinks of all greenhouse gases not controlled by the Montreal Protocol. By Article 12.2, each developed country party, including Australia, was to incorporate, in its communication, a detailed description of the policies and measures that it had adopted to implement its commitment under Article 4 and a specific estimate of the effects that those policies and measures would have on anthropogenic emissions by its sources and removals by its sinks of greenhouse gases. 27 By Article 7 of the Framework Convention, a Conference of the Parties was established. The Conference of the Parties, as the supreme body of the Framework Convention, was to keep under regular review the implementation of the Framework Convention and any related legal instruments that the Conference of the Parties may adopt. The Conference of the Parties was also to make, within its mandate, the decisions necessary to promote the effective implementation of the Framework Convention. 28 Australia is also a party the Kyoto Protocol, which was made pursuant to the Framework Convention. Australia ratified the Kyoto Protocol on 12 December 2007. 29 By Article 3.1 of the Kyoto Protocol, together with Annexes I, A and B, Australia agreed to ensure that its aggregate anthropogenic carbon dioxide equivalent emissions of greenhouse gases would not exceed 108 per cent of its emissions in the base year or period, with a view to reducing overall emissions of such gases by at least 5% below 1990 levels in the commitment period 2008 to 2012. 30 By Article 3.3, the net changes in greenhouse gas emissions by sources and removals by sinks resulting from direct human-induced land-use change and forestry activities, limited to aforestation , reforestation and deforestation since 1990, measured as verifiable changes in carbon stocks in the commitment period of 2008 to 2012, were to be used to meet the commitments under Article 3 of each party. The greenhouse gas emissions by sources and removals by sinks associated with those activities were to be reported in a transparent and verifiable manner. 31 By Article 13, the Conference of the Parties was to serve as the meeting of the parties to the Kyoto Protocol. The Conference of the Parties is to keep the implementation of the Kyoto Protocol under regular review and is to make, within its mandate, the decisions necessary to promote its effective implementation. The Conference of the Parties is to perform the functions assigned to it by the Kyoto Protocol. • Make recommendations on matters necessary for the implementation of the Kyoto Protocol (Article 13.4(f). 32 By Article 17, the Conference of the Parties is to define the relevant principles, modalities, rules and guidelines, in particular for verification, reporting and accountability for emissions trading. Article 17 also provides that certain of the parties, including Australia, may participate in emissions trading for the purposes of fulfilling their commitments under Article 3. Any such trading is to be supplemental to domestic actions for the purpose of meeting quantified emission limitation and reduction commitments under Article 3. 33 By clause 1(d) of Decision 16/CMP.1, taken at the Conference of the Parties held at Montreal from 28 November 2005 to 10 December 2005, which deals with 'land use, land use change and forestry', the Conference of the Parties affirmed that one of the principles governing the treatment of land use, land use change and forestry activities was that 'the mere presence of carbon stocks be excluded from accounting'. In the same decision, the Conference of the Parties adopted the definitions, modalities, rules and guidelines relating to land use, land use change and forestry activities under, inter alia , Article 3 of the Kyoto Protocol, contained in an annex to Decision 16/CMP.1. • "Reforestation" is the direct human-induced conversion of non-forested land to forested land through planting, seeding and/or the human-induced promotion of natural seed sources, on land that was forested but that has been converted to non-forested land. For the first commitment period, reforestation activities will be limited to reforestation occurring on those lands that did not contain forest on 31 December 1989. • "Deforestation" is the direct human-induced conversion of forested land to non-forested land. Any such agreement must be in writing and, subject to ss 8, 9 and 10, financial assistance is payable to a State in accordance with such an agreement. Section 5(6) provides that payments under s 5 must be paid out of money appropriated by the Commonwealth Parliament for that purpose. 38 Section 6 of the Financial Assistance Act provides that the Commonwealth may enter into an agreement with a person for the person to carry out a project relating to natural resources management. Such an agreement must be in writing and payments made under such an agreement must be made out of money standing to the credit of the Natural Resources Management Account. Section 11 provides for the existence of the Natural Resources Management Account, which is a Special Account for the purposes of the Financial Management and Accountability Act 1997 (Cth). As originally enacted, the Financial Assistance Act provided for the Natural Resources Management Fund, which was a continuation under a new name of the National Soil Conservation Program Fund established by section 8 of the Soil Conservation (Financial Assistance) Act 1985 (Cth). However as a consequence of s 5(3) of the Financial Management Legislation Amendment Act 1999 (Cth) ( the 1999 Financial Management Act ) the Natural Resources Management Fund was replaced by the Natural Resources Management Account and the balance of money standing to the credit of the former was credited to the latter. For the purposes of this proceeding, the distinction is immaterial and, for the sake of convenience, I shall refer to the funds and account as the Natural Resources Management Account in all guises. • The conditions subject to which payments under the agreement are to be made. • The monitoring and evaluation of the project or projects. • The review of the operation of the agreement. • The amendment of the agreement by a further agreement as a result of such a review. It is relevant to note that there is no requirement for an agreement to provide for the acquisition of any property or the imposition of restrictions on land use or the clearing of native vegetation. It is equally relevant to note that there is no express provision preventing an agreement from providing for the acquisition of property other than on just terms. • The assignment by the payee to the Commonwealth of any such property or patents or any interest that the payee may have in any such invention. Again, it is significant that none of the provisions referred to contains a requirement for the acquisition of any property or the imposition of a restriction on land use or the clearing of native vegetation, nor is there an express provision preventing an agreement from providing for the acquisition of property on unjust terms. 41 Section 8(2) of the Financial Assistance Act provides that, in addition to any conditions provided for in an agreement made under ss 5 or 6, a payment by the Commonwealth under such an agreement is subject to specified conditions. Under s 9, such an agreement is, except so far as otherwise provided for in the agreement, subject to certain further conditions. None of those conditions is concerned with the acquisition of any property or the imposition of a restriction on land use or the clearing of native vegetation. 42 Part 3 of the Financial Assistance Act deals with the Natural Resources Management Account. Sections 11(3) and 11(4) provide for the crediting of certain amounts to the Natural Resources Management Account. • Making payments in respect of the expenses incurred by the Australian Land Care Council established by s 13. • Making payments in respect of other costs of administration of the Financial Assistance Act. The Natural Heritage Trust of Australia Account is a Special Account for the purposes of the Financial Management and Accountability Act 1997 (Cth). As originally enacted, the Natural Heritage Act established the Natural Heritage Trust of Australia Reserve. However, as a consequence of s 5(3) of the 1999 Financial Management Act , the Natural Heritage Trust of Australia Reserve was replaced by the Natural Heritage Trust of Australia Account and the balance of money standing to the credit of the former was credited to the latter. For the purposes of this proceeding the distinction is immaterial and, for the sake of convenience, I shall refer to both as the Natural Heritage Account . 44 The main source of the money for the Natural Heritage Trust Account is $1.35 billion from the partial sales of shares in Telstra Corporation Limited ( Telstra ). The main objective of the establishment of the Natural Heritage Account is to conserve, repair and replenish Australia's natural capital infrastructure. Amounts standing to the credit of the Natural Heritage Trust Account are to be spent on the environment, sustainable agriculture and natural resources management. • There is a need for the Commonwealth to provide national leadership and work in partnership with all levels of government and the whole community, recognising, among other things, that many environmental issues and problems are not limited by State and Territory borders. • There is a need to integrate the objectives of environmental protection, sustainable agriculture and natural resources management consistent [sic] with the principles of ecologically sustainable development. • The Commonwealth Government should work cooperatively with State governments to achieve effective outcomes in matters relating to environmental protection, natural resources management and sustainable agriculture. Those cooperative working relationships should involve entering into inter-governmental agreements which reflect the support of the States for the purposes of the Natural Heritage Account and promote the development of complementary policies and programs. • Australia's rural community should have a key role in the ecologically sustainable management of Australia's natural resources. Section 10 provides that the primary objective of the National Vegetation Initiative is to reverse the long term decline in the extent and quality of Australia's native vegetation cover by conserving remnant native vegetation, conserving Australia's biodiversity, and restoring, by means of revegetation, the environmental values and productive capacity of Australia's degraded land and water. 48 Section 19 is a critical provision of the Natural Heritage Act for present purposes. Section 19 applies if an amount is to be debited from the Natural Heritage Account for the purpose of making a grant of financial assistance to a State. Under s 19(2), the terms and conditions on which such financial assistance is granted are to be set out in a written agreement between the Commonwealth and the State. 49 The terms "environmental protection", "natural resources management" and "sustainable agriculture" are defined by ss 15, 17 and 16 respectively. The precise terms of those definitions do not appear to be presently relevant. 50 Section 21 applies to a decision of a Minister to approve a proposal to spend an amount standing to the credit of the Natural Heritage Account for a purpose of the Natural Heritage Account as set out in s 8. Under s 21(3), the principles of ecologically sustainable development consist of certain stated core objectives and some seven guiding principles. 51 Part 4 of the Natural Heritage Act deals with the crediting of amounts to the Natural Heritage Account. s 22A: $250 million derived from the subsequent partial sale of Telstra. s 23: Budget appropriations. s 24: Gifts and bequests. s 25: Repayments of grants. s 26: Commonwealth receipts under funding agreements. s 27: Income from assets acquired using amounts credited to the Natural Heritage Trust Account. s 28: Proceeds of disposal of assets acquired using amounts credited to the Natural Heritage Trust Account. s 29: Income from projects and related activities funded with amounts credited to the Natural Heritage Trust Account. 52 None of the provisions of the Natural Heritage Act contains a requirement for the acquisition of any property or the imposition of a restriction on land use or the clearing of native vegetation; nor is there an express provision preventing an agreement from providing for the acquisition of property on unjust terms. • The Inter-Governmental Agreement on a National Action Plan for Salinity and Water Quality in Australia ( the Salinity Action Plan ), made on 3 November 2000 ( the 2000 Agreement ). • A bilateral Agreement between the Commonwealth of Australia and the State of New South Wales Relating to the Salinity Action Plan, made on 17 May 2002 ( the 2002 Agreement ). • A bilateral Agreement between the Commonwealth of Australia and the State of New South Wales to deliver the extension of the Natural Heritage Trust, made on 14 August 2003 ( the 2003 Agreement ). 54 I shall say something about each of them in turn. The Natural Heritage Trust is a major capital initiative aimed at conserving and managing Australia's biodiversity, land, water, vegetation and sea on an ecologically sustainable basis. This agreement sets out the roles and responsibilities of the Commonwealth and New South Wales for the delivery of the objectives of the Natural Heritage Trust and any associated programs. • Recognise that the Natural Heritage Trust provides a basis for further cooperative and integrated approaches to dealing with Australia's environmental problems. • Recognise the appropriate and different roles of the Commonwealth and the States. 56 By clause 3 of the 1997 Agreement, the parties agree to give effect to a number of principles, which underpin the implementation of the Natural Heritage Trust programs and other Commonwealth or State programs agreed by the parties to be covered by the 1997 Agreement. • The involvement of local communities and regional organisations in relation to Natural Heritage Trust programs should be through State agencies and should be simple, readily understood and based on the "one-stop-shop" concept, that is, a single application form incorporating relevant Commonwealth and State programs, a single assessment process, single payments, and a single evaluation process. • The parties agree that their cooperation will be focussed on achieving outcomes at the program level. The 1997 Agreement is to apply to those Natural Heritage Account funds provided to New South Wales for programs set out in the Natural Heritage Act and any additional State or Commonwealth programs that are included from time to time in attachments to the 1997 Agreement, as agreed by the parties. Clause 4 expressly provides that the 1997 Agreement allows for the future inclusion of other related programs in the Natural Heritage Trust, additional mechanisms and innovative approaches for the protection and management of Australia's natural heritage, the inclusion of which is agreed by the parties. 58 Clause 5 of the 1997 Agreement provides for attachments consistent with 1997 Agreement to be developed and to become part of the 1997 Agreement. Attachment A is to relate to the arrangements for managing particular programs or other activities agreed by the parties, and is to include, but is not limited to, the strategic framework in which progress towards identified outcomes is to be achieved. Attachment B contains provisions for financial assistance to the States in accordance with the 1997 Agreement. Attachment C outlines the approach to integrated delivery in New South Wales. By reason of Clause 5.1 of the 1997 Agreement, Attachments A, B and C all form part of the 1977 Agreement itself. 59 By clause 6 of the 1997 Agreement, the parties agree, in accordance with the principles outlined in Clause 3, to plan, develop and support jointly the implementation of strategies to achieve the purposes of the 1997 Agreement. The specific roles of the Commonwealth and New South Wales are set out in Clauses 6.2 and 6.3 respectively. None of those provisions is concerned in terms with the acquisition of any property or the imposition of restrictions on the use of land or the clearing of native vegetation. 60 Clause 7 deals with financial arrangements. Under Clause 7.2, financial arrangements are to be determined in accordance with principles therein stated. Clause 8 deals with financial administration. Clause 8.2 provides that financial assistance will be provided in accordance with the provisions of Attachment B. 61 Attachment A consists of a description of Commonwealth programs and delivery arrangements. Mr Spencer draws attention particularly to the Bushcare: The National Vegetation Initiative and the National Land Care Program. There will be a shift from the current situation where there are a range of different existing permit and licensing procedures, to a situation whereby clearing is allowed without a permit if it conforms to a Regional Vegetation Management Plan which has been prepared by stakeholders and approved by the Government. These Plans will be specific to regions, but underpinned by state-wide thresholds, consistent with the approach outlined in Objective 1.2 of the National Strategy for the Conservation of Australia's Biological Diversity and section 4.2 below. The statutory basis for this will be a new Native Vegetation Conservation Act which will require that native vegetation clearing is subject to comprehensive environmental assessment and permit clearing where consistent with a Regional Vegetation Management Plan. 65 Attachment B to the 1997 Agreement contains standard terms and conditions of financial agreements between the Commonwealth and New South Wales for the purpose of financial assistance. The 1997 Agreement is described in Attachment B as " the Partnership Agreement ". That term is defined as meaning an agreement made between the Commonwealth and the State under s 19 of the Natural Heritage Act of the type referred to in s 19(4) of that Act. 66 Clause 3 of Attachment B provides that payments made to New South Wales will be in accordance with a signed financial agreement as outlined in the pro forma annexed to Attachment B, for defined projects or programs with specified outputs, outcomes and reports. The pro forma attached recites that the agreement is made for the purpose of providing Commonwealth financial assistance to the State under s 19 of the Natural Heritage Act, s 16 of the National Parks and Wildlife Conservation Act 1975 (Cth) and s 5 of the Financial Assistance Act. It also recites that the agreement is made for the purposes of linking Commonwealth and State priorities and programs agreed between the parties as outlined in Attachments A and C of the Partnership Agreement and for specified activities to enable the State, within the financial assistance provided, to achieve, in part, the outcomes sought in Attachment A. 67 Attachment C consists of the New South Wales Integrating Framework. Clause 1 provides that it sets out the integrating framework in New South Wales, which facilitates the integrated planning and implementation of Natural Heritage Trust projects and programs. Clause 2 provides that implementation of the Partnership Agreement is to occur within the framework of the policies and strategies then set out. The preamble provides that, in recognition of Australia's critical salinity and water quality problems, the parties agree to the Salinity Action Plan, which is set out as Attachment A to the 2000 Agreement. Attachment A is not in evidence. The purpose of the 2000 Agreement was to establish the arrangements between governments, in accordance with the Salinity Action Plan, that are necessary to motivate and enable regional communities to prevent, stabilise and reverse trends in salinity and improve water quality and secure reliable allocations for human uses, industry and the environment. By Clause 10, the parties agree on twenty-one catchments or regions which are said to be priority regions for block funding for accreditation plans under the 2000 Agreement. The priority regions are said to be shown in an indicative map contained in Attachment B, which is not in evidence. For the purposes of this clause 'unacceptable land and water degradation' will be defined in conjunction with the development of interim standards ... under Clause 20. 70 Clauses 37 to 46 concern Commonwealth financial assistance to the States. By clause 37, the Commonwealth financial contribution of $700 million over 7 years is stated to be 'matched' by State and Territory contributions. By Clause 39, Commonwealth financial contributions are stated to be available to a State or Territory once agreement is reached with that State or Territory on the implementation of the whole package of measures through the signing of the 2000 Agreement. 71 The 2000 Agreement goes on to describe some principles for the funding of 'catchment / regional bodies'. By clause 47 the parties agree that compensation to assist adjustment where property rights are lost will be addressed in developing catchment/regional plans noting that, while such compensation is the responsibility of the States and Territories, the Commonwealth is prepared to consider making an additional contribution, separate from the $700 million mentioned above. The preamble recites that the parties are committed to implementing the Salinity Action Plan endorsed by the 2000 Agreement, which established the framework for implementation for the Salinity Action Plan. 73 In clause 4.11 of the 2002 Agreement, in dealing with land, the parties noted that the objects of the 1997 Vegetation Act were based on the principles of ecologically sustainable development. By Clause 4.12, the parties recognised that New South Wales had in place a legislative and regulatory framework under the 1997 Vegetation Act that meets the requirements of Clause 27 of the 2000 Agreement. By Clause 4.14, the parties recognised that the regulatory and planning framework established by the 1997 Vegetation Act formed an appropriate mechanism for assessing applications to clear land in New South Wales. By Clause 4.15, the parties noted that New South Wales was currently reviewing the assessment and compliance procedures under the 1997 Vegetation Act and that, in particular, land clearing assessment guidelines were currently being updated to incorporate a more comprehensive process for assessing potential salinity impacts. 74 By Clause 4.1 of the 2002 Agreement, the parties acknowledged that New South Wales was significantly advanced in land and water reforms and had natural resource management priorities and strategies that are consistent with the overall national policy approach outlined in the Salinity Action Plan. Clause 4.1 provided that implementation of the 2002 Agreement would occur within the existing framework of State legislation, policies and strategies described in Schedule 2 but recognised that the State framework would be refined and updated from time to time. 75 Schedule 2 relevantly provided that a range of legislation and regulation affects land and water management in New South Wales. One of the three principal pieces of legislation is the 1997 Vegetation Act, the other two being the Catchment Management Act 1989 (NSW) and the Water Management Act 2000 (NSW). Clause C of the preamble recites that the role of the parties in implementing the 2003 Agreement is to ensure that the Natural Heritage Trust investment is strategic, high priority and consistent with regional, State-wide and national priorities. 79 The preamble also recites that the Natural Heritage Trust consists of four programs, Landcare, Bushcare, Rivercare and Coastcare. Those programs are set out in more detail in Attachment 1 to the 2003 Agreement. In Attachment 1, the national goal of the Landcare Program is said to be to reverse land degradation and promote sustainable agriculture. The national goal of the Bushcare Program is to conserve and restore habitat for Australia's unique native flora and fauna that underpin the health of landscapes. One of the priorities in seeking to achieve that goal is to reverse the decline in the extent and quality of Australia's native vegetation. 80 Clause M of the preamble states that the 2003 Agreement is made pursuant to s 19(2) of the Natural Heritage Act and s 5 of the Financial Assistance Act. By clause 2.1, the 2003 Agreement is to commence on the day of signing and continue in force until 30 June 2007. 81 By clause 4.1, the parties acknowledge that New South Wales is significantly advanced in land, water and biodiversity reforms and has natural resource management and biodiversity conservation priorities and strategies that are consistent with the overall national policy approach outlined in the Natural Heritage Trust, by which, it seems reasonable to infer, is meant that they are consistent with the objects of the Natural Heritage Account. 82 Clauses 4.4 to 4.8 deal with "vegetation management and biodiversity conservation". The parties agree to review progress of the implementation of measures arising from the above periodically, but by no later than June 2004. By clause 4.7, the parties recognise the need to accelerate the development of an integrated native vegetation system that will improve the ability of government agencies, catchment boards, land holders and the community to make informed vegetation management decisions. While those provisions may have some marginal relevance to the issues in the proceeding, no reference was made to them by Mr Spencer. It was repealed on 1 December 2005 by operation of s 52 of the 2003 Vegetation Act. The 2003 Vegetation Act received Royal Assent on 11 December 2003. However, it did not commence until 1 December 2005. It remains in force. 84 I shall describe separately the relevant provisions of the State Statutes. Section 6 defines native vegetation as meaning indigenous vegetation consisting of trees, understorey plants, groundcover and plants occurring in a wetland. 86 Part 2 of the 1997 Vegetation Act deals with clearing native vegetation and clearing protected land. Under s 5(1) clearing native vegetation includes cutting down, felling, thinning, logging or removing native vegetation, killing, destroying, poisoning, ringbarking, uprooting or burning native vegetation, severing topping or lopping branches, limbs, stems or trunks of native vegetation and substantially damaging or injuring native vegetation in any way. Under s 5(2) clearing protected land means doing any one or more of those things in relation to any vegetation on protected land , as defined in s 4. Protected land means regional protect land (land that is identified in a regional vegetation management plan as regional protected land) or State protected land (land that is identified in an order under s 7 as State protected land, and any land that was defined as protected land under s 21AB of the Soil Conservation Act 1938 (NSW) before its repeal). 87 The object of Part 2 is to apply the development consent process under Part 4 of the Environmental Planning and Assessment Act 1979 (NSW) ( the EPA Act ) in relation to clearing native vegetation and clearing protected land. Division 2 of Part 2 deals with the requirement for development consent for clearing native vegetation on land that is subject to a regional vegetation management plan , while Division 3 generally requires development consent for clearing native vegetation on land that is not subject to a regional vegetation management plan. 88 Section 21, which is in Division 3, provides that a person must not clear native vegetation on any land except in accordance with a development consent that is in force or a native vegetation code of practice. Development consent means development consent under Part 4 of the EPA Act. However, s 21 does not apply to land to which a regional vegetation management plan applies or to land which is State protected land. 89 Part 3 deals with regional vegetation management plans. Under s 25, which is in Part 3, a regional vegetation management plan may contain provisions specifying whether or not development consent is required to clear native vegetation and may adopt or incorporate the provisions of a native vegetation code of practice as part of the plan. Part 4 of the 1997 Vegetation Act deals with vegetation codes of practice. 90 Section 38, which is in Part 4, provides that a vegetation code of practice may contain provisions relating to the clearing of native vegetation on land for a purpose specified in the code. A native vegetation code of practice is to include the aims and objectives of the code and is to specify the extent to which the native vegetation may be cleared in accordance with the code. 92 Part 3 of the 2003 Vegetation Act deals with clearing native vegetation. Native vegetation is defined in terms similar to the definition in the 1997 Vegetation Act and clearing has a similar meaning, with the exception that severing, topping or lopping branches, limbs, stems or trunks of native vegetation and substantially damaging or injuring native vegetation in any way have been removed from the definition of clearing. Section 12(1) of the 2003 Vegetation Act, which is in Part 3, provides that native vegetation must not be cleared except in accordance with a development consent granted in accordance with the Act or a property vegetation plan. Section 12(2) makes it a criminal offence to carry out or authorise clearing of land in contravention of s 12. Under s 14, if development consent is required to clear native vegetation, Part 4 of the EPA Act applies to the granting of the development consent. 93 Division 2 of Part 3 deals with permitted clearing. Under s 19, which is in Division 2, clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted, subject to any exclusion in a property vegetation plan. Under s 9, regrowth means any native vegetation that has regrown, relevantly, since 1 January 1990. Under s 10, protected regrowth means any native vegetation that is identified as such in a property vegetation plan, an environmental planning instrument, a natural resource management plan or an interim protection order made under s 10. 94 Division 3 of Part 3 deals with permitted activities and sets out the activities that do not constitute the clearing of native vegetation for the purposes of Part 3 and, accordingly, are permitted to be carried out without the authority conferred by a development consent or a property vegetation plan. Section 22, which is in Division 3, provides that clearing for "routine agricultural management activities" is permitted. Under s 11(2), regulations may make provision for or with respect to extending, limiting or varying the activities that are routine agricultural management activities. 96 The Native Vegetation Regulation 2005 ( the 2005 Regulation ) deals with routine agricultural management activities. Regulation 16 provides that the activities that comprise routine agricultural management activities are extended to include the clearing of native vegetation on land for use in the construction or maintenance of rural infrastructure during limited periods. Regulation 17 deals with the clearing of feral native plant species. Regulation 20 deals with infrastructure buffer distances. Regulations 20(1) and 20(3) impose distance clearing restrictions on the activities listed and do not limit the kinds of activities that can be carried out in the areas mentioned in those provisions. Regulation 20(2), in addition, limits the kinds of activities that can be carried on in certain areas that are specified. The area in which Saarahnlee is located is covered by Regulation 20(3) and not by Regulation 20(2). 97 Section 23 of the 2003 Vegetation Act, which is in Division 3 of Part 3, deals with the continuation of farm activities. Under s 23, the continuation of existing cultivation, grazing or rotational farming practices is permitted if it does not involve the clearing of remnant native vegetation. Existing means existing at the commencement of the 2003 Vegetation Act. Under s 9, remnant native vegetation is any native vegetation other than regrowth. 98 It may be of significance that the prohibitions contained in the 2003 Vegetation Act are not absolute. Rather, the 2003 Vegetation Act prohibits or restricts the clearing of native vegetation without first obtaining development consent in accordance with Part 4 of the EPA Act. However, it is common ground that no such development consent has been granted in respect of Saarahnlee. Accordingly, there are, at present, significant restrictions on the clearing of native vegetation on Saarahnlee. He seeks declarations that the Commonwealth Statutes are invalid to the extent that they effected or authorised acquisitions of property from Mr Spencer . He also seeks declarations that the Inter-Governmental Agreements are invalid to the extent that they effected or authorised acquisitions of property from Mr Spencer. Thus, it is necessary to consider whether either of the Commonwealth Statutes or any of the Inter-Governmental Agreements effected or authorised an acquisition of property from Mr Spencer. 100 A critical step in Spencer's contentions, as I understand them, is that each of the Commonwealth Statutes is invalid, at least in part, because it is a law with respect to the acquisition of property and does not provide for just terms. If there has been no acquisition of any of Mr Spencer's property, the proceeding must fail. More importantly, however, even if there has been an acquisition of Mr Spencer's property, the proceeding as pleaded must fail unless Mr Spencer is able to demonstrate that the relevant acquisition was effected or authorised by the Financial Assistance Act or the Natural Heritage Act. 101 Counsel for Mr Spencer conceded, in the course of argument, that neither the Financial Assistance Act nor the Natural Heritage Act effected any acquisition of any property of Mr Spencer's. Rather, Mr Spencer accepts that, if any property of his has been acquired, it was acquired by, or as a result of, the passing of the State Statutes, coupled with the making of administrative decisions by officers of New South Wales under the State Statutes. He contends that the effect of the State Statutes, in the light of those administrative decisions, has been to impose restrictions or prohibitions on the use of Saarahnlee so as to expropriate the Rights and Interests as described in the statement of claim. Importantly, however, Mr Spencer does not, in this proceeding, impugn the validity of either of the State Statutes. 102 It is common ground that, in respect of the acquisition or expropriation alleged by Mr Spencer, no compensation has been paid or offered to Mr Spencer by the Commonwealth and that just terms have not been provided to Mr Spencer by the Commonwealth . Further, it is common ground that Mr Spencer has received no compensation from the Commonwealth in respect of any advantage or benefit accruing to the Commonwealth in respect of the Carbon Rights. The question of whether or not Mr Spencer is entitled to compensation from New South Wales has not been explored in the proceeding. 103 In his submissions, counsel for Mr Spencer formulated a number of questions in respect of which he contended that there is a serious question to be tried. Whether the Commonwealth has received a benefit and Mr Spencer has suffered a corresponding or co-relative detriment. 2. Whether any of the Rights and Interests, as identified in Mr Spencer's statement of claim, constitute property within the meaning of s 51(xxxi) of the Constitution . 3. Whether there has been an acquisition of any such property within the meaning of s 51(xxxi). 4. Whether any such property has been acquired for a purpose for which the Parliament of the Commonwealth has power to make laws. 5. Whether the Commonwealth has made a law with respect to the acquisition of any such property. 6. Whether, in the absence of any such law, the alleged acquisition is unauthorised such that property of Mr Spencer's has been converted by the Commonwealth. 104 Counsel for Mr Spencer contended that none of those questions is a question of law simpliciter . Specifically, question 5 was said to involve a factual consideration as to whether the Commonwealth statutes formed part of a scheme or device to avoid or over-reach the restriction imposed on the Commonwealth by s 51(xxxi) of the Constitution , as alleged in paragraph (9.2) of Mr Spencer's statement of claim (see [6] above). That is to say, it is contended that question 5 must be considered on the assumption that questions 1 to 4 are answered favourably to Mr Spencer. 106 The Commonwealth, on the other hand, contended that there are four bases upon which Mr Spencer's proceeding should be dismissed summarily. Neither of the Commonwealth Statutes is a law with respect to the acquisition of property within s 51(xxxi) of the Constitution : rather, each is a law for the granting of financial assistance to states under s 96 of the Constitution . 2. Mr Spencer lacks standing or, alternatively, the claims made in his statement of claim do not give rise to a justiciable matter for the purpose of Chapter III of the Constitution . 3. Mr Spencer's statement of claim does not allege facts that would constitute an acquisition of property within the meaning of s 51(xxxi) of the Constitution . 4. The doctrines of res judicata or issue estoppel constitute a complete bar to Mr Spencer's claims. 107 The question of res judicata or issue estoppel is a separate and discrete one. On the other hand, Mr Spencer's questions 1, 2 and 3 tend to merge together and there is an overlap between the matters raised by Mr Spencer's questions and the matters raised by contentions 1, 2 and 3 advanced on behalf of the Commonwealth. The Commonwealth's contention 2 may be another way of saying that, even if there is some element of invalidity in the Commonwealth Statutes, neither of them authorises or effects any acquisition of any property of Mr Spencer's. However, before dealing with those questions, I will first say something about the relevant legal principles concerning ss 51(xxxi) and 96 of the Constitution . Further, it is not appropriate to characterise a law by reference to the motives that inspire it or the consequences that flow from it ( Huddart Parker Ltd v The Commonwealth [1931] HCA 1 ; (1931) 44 CLR 492 at 515-516 and Murphyores Incorporated Pty Ltd v The Commonwealth [1976] HCA 20 ; (1976) 136 CLR 1 at 20). 111 Section 51(xxxi) is not limited to laws providing, in terms, for the acquisition of property by the Commonwealth itself. Thus, the imposition by the Commonwealth of a statutory time limit upon an subsisting and unresolved cause of action at common law in a State court may constitute an acquisition of property, where there is a disadvantage to one party and a corresponding advantage to another, although there does not need to be an exact correspondence of disadvantage and advantage ( Smith v ANL Limited [2000] HCA 58 ; (2001) 204 CLR 493 at 500 and 504-505 and Newcrest Mining Co v The Commonwealth [1997] HCA 38 ; (1997) 190 CLR 513 at 634). 112 Further, the requirement of just terms in s 51(xxxi) applies in the case of acquisition of property authorised under a Commonwealth law, even though the Commonwealth itself does not acquire the property. The provision could readily be evaded if it did not apply, for example, to acquisition by a corporation constituted by the Commonwealth or by an individual person authorised by a Commonwealth law to acquire property. It would be quite ineffective if, by making an agreement with a State for the acquisition of property upon terms that were not just, the Commonwealth Parliament could validly provide for the acquisition of property from any person to whom State legislation could be applied upon terms that were other than just. Accordingly, all Commonwealth legislation with respect to the subject of acquiring property must affirmatively provide just terms for such acquisition, whether the acquisition be by the Commonwealth, by a State or by any other person or entity (see PJ Magennis Pty Ltd v The Commonwealth [1949] HCA 66 ; (1949) 80 CLR 382 at 401-402). 113 In addition, there is nothing in s 51(xxxi) that limits its application to a law that directly acquires property by force of its own terms or creates a previously non-existing power in some person to acquire property or that comes into operation upon the acquisition of property. Thus, where a law authorises the execution of an agreement, the whole subject matter of which is the acquisition of property upon certain terms and conditions for certain purposes, the law is a law with respect to the acquisition of property (see PJ Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 at 402). 114 In PJ Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 , the Commonwealth and a State purported to make an agreement whereby the State was to acquire land and to settle discharged members of the armed forces on the land. The whole transaction was described as a joint venture between the Commonwealth and the State. Commonwealth legislation authorising the executive government of the Commonwealth to enter into such an agreement was founds to be legislation with respect to the acquisition of land for a purpose in respect of which the Commonwealth Parliament has power to make laws. In the absence of a provision for just terms, such legislation was invalid (see PJ Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 at 424). 115 However, s 51(xxxi) of the Constitution applies only to legislation of the Commonwealth Parliament and does not invalidate State legislation that does not provide just terms. Nevertheless, while legislation of a State may be valid, if it operates only to approve and ratify a purported agreement with the Commonwealth, being an agreement that is beyond the power of the Commonwealth Parliament to authorise, that purported agreement cannot be an agreement between the Commonwealth and the State. In those circumstances, there would be no agreement that the State legislation could approve and ratify. While the legislation of the State in such a case would still be valid, it would be inoperative in the sense that it approves and ratifies nothing (see PJ Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 at 424-425). 116 Section 96 of the Constitution provides that the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. That power is susceptible of a very wide construction in which few, if any, restrictions can be implied. Restrictions could only be implied from some conception of the purpose for which the particular power was conferred upon Parliament or from some general constitutional limitations upon the powers of the Parliament that an exercise of the power given by s 96 might otherwise transcend. It may not be difficult to perceive that such limitations would be intended in the case of coercive powers. However, there is nothing in s 96 that is coercive. It is but a power to make grants of money and to impose conditions on those grants. There is no power to compel a State to accept a grant, the acceptance of which would carry with it an obligation to satisfy accompanying conditions (see State of Victoria v The Commonwealth [1957] HCA 54 ; (1957) 99 CLR 575 at 605). 117 The Commonwealth may properly induce a State to exercise that State's powers by offering a money grant by way of financial assistance (see South Australia v The Commonwealth [1942] HCA 14 ; (1942) 65 CLR 373 at 417). Section 96 is satisfied if money is placed in the hands of a State notwithstanding that, in the exercise of the power to impose terms and conditions, the State is required to pay over the money to a class of persons in or connected with the State in order to fulfil some purpose of the Commonwealth that is outside its power to effect directly (see State of Victoria at 606-7). However, a State is not bound to accept a grant of financial assistance by the Commonwealth. 118 A State can acquire land or other property, by resumption or otherwise, on any terms authorised by its Parliament, whether just or unjust. If a State Act provides for resumption of land on terms which are thought not to be just, that is of no consequence legally: it cannot affect in any way the validity of the State Act or of what is done under it (see Pye v Renshaw [1951] HCA 8 ; (1951) 84 CLR 58 at 79-80). Further, the Commonwealth may provide money to a State under s 96 in order that the State may resume land otherwise than on just terms (see Pye v Renshaw [1951] HCA 8 ; (1951) 84 CLR 58 at 83), presumably because such a law, not requiring an appropriation of property as a condition of a grant of financial assistance, is not a law with respect to the acquisition of property. However, there is no substance in the proposition that a law that is for giving financial assistance to a State or States under s 96 is, by that reason alone, therefore not a law with respect to the acquisition of property (see Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 at 403). Further, it would appear to be ultra vires the legislative power of the Commonwealth to authorise a grant under s 96 pursuant to an agreement, or to authorise an agreement, that requires a State to use its law making powers to acquire property on unjust terms , because such legislation would be with respect to the acquisition of property (see Magennis Pty Ltd [1949] HCA 66 ; (1949) 80 CLR 382 at 399 and 402-403). 120 Accordingly, it may be arguable that an agreement between the Commonwealth and a State will be invalid if, as a condition of accepting a grant of financial assistance, the State agrees to acquire property otherwise than on just terms. Thus, an agreement between the Commonwealth and a State whereby the Commonwealth agrees to offer a money grant by way of financial assistance under s 96 in order to induce a State to exercise its powers to resume land on terms that are not just is arguably invalid. 121 If a Commonwealth law authorises the making of grants under s 96 on the condition that there is an agreement with a State as to the terms of that financial assistance, the Commonwealth law would ordinarily be interpreted to require a valid agreement. If a Commonwealth law is silent as to whether the agreement may provide for the acquisition of property otherwise than on just terms, the Commonwealth law should be interpreted to authorise only the making of agreements that impose conditions on the granting of financial assistance that would not be constitutionally invalid under s 51(xxxi) if they were imposed directly as a condition of a grant by a Commonwealth law made under s 96 (see Evans v State of New South Wales [2008] FCAFC 130). 122 Thus, a purported agreement imposing a requirement on a State that it acquire property on unjust terms as a condition of the Commonwealth's providing financial assistance would be ultra vires the power to enter into agreements under such a Commonwealth law. For that reason, the issue of the Constitutional validity of such an agreement need not arise directly in such a case. Such a Commonwealth law would not be invalid by reason of s 51(xxxi) , because it would not authorise the making of unconstitutional agreements. If a Commonwealth law did expressly, or by necessary implication, authorise the making of unconstitutional agreements, that law would be invalid. However, none of that will lead to the law of a State being invalid, unless the operation of that State law is dependant upon the existence of a valid agreement with the Commonwealth (see Magennis's case). He argues that land is nothing more than a bundle of rights amounting to a relationship between a person with possession, or a right to possession, of those rights and the physical natural resources that comprise land, such as grass, trees, soil and water. If that relationship is sterilised or impaired by statute, an acquisition of property occurs. 124 Mr Spencer claims that his whole farming operation has been rendered unviable and that he can no longer use Saarahnlee for any reasonable purpose. He says that, therefore, his relationship with Saarahnlee has been acquired in the sense just indicated. He asserts that various incidents of his being the holder of freehold and leasehold title in respect of Saarahnlee have been lost to him, such that the benefit of those incidents has been acquired within the meaning of s 51(xxxi). 125 Mr Spencer's claim depends entirely upon the restrictions and prohibitions imposed by the State Statutes. However, neither of the State Statute imposes an absolute restriction or prohibition. Rather, each prohibits native vegetation clearance without development consent under Part 4 of the EPA Act. Even then, clearing is still permitted in certain additional circumstances, such to clear around fences, roads and other farming infrastructure. 126 On 6 March 2007, the Murrumbidgee Catchment Management Authority ( the MCM Authority ), a New South Wales instrumentality, wrote to Mr Spencer concerning a proposal put forward by Mr Spencer to clear 1,402 hectares of native vegetation on Saarahnlee. The MCM Authority said in its letter that, after analysis of field data, Mr Spencer's proposal failed to meet the relevant test and therefore that the proposal could not be approved. The letter also said that the MCM Authority had since assessed a number of other alternative smaller clearing sizes and that they also failed to meet the relevant test. 127 The letter went on to say that Mr Spencer had been assessed as having satisfied the initial test of eligibility for "Farmer Exit Assistance". The letter said that the next stage of assessment required an assessment of financial eligibility by the Rural Assistance Authority ( the RA Authority ), another New South Wales instrumentality. The letter said that, to be financially eligible for assistance, Mr Spencer would need to show that clearing of the area of land that satisfied the "Relative Hardship Test" was required to allow his farm business enterprise to meet some or all of five specified factors. Mr Spencer was invited to provide further information if he wished to proceed with an application for such assistance. He was told that, if his application met the eligibility criteria, it would be passed on to the Nature Conservation Trust, which would commission an independent valuation of Saarahnlee and provide an offer of purchase based on that valuation. 128 On 5 July 2007, the RA Authority wrote to Mr Spencer in connection with his application for assistance under the State's "Native Assistance Vegetation Package" and said that it was satisfied that Mr Spencer's farming enterprise "is not commercially viable". The letter stated that that position was a result of "the inability to clear native vegetation under the [2003 Vegetation Act]". The letter ended by saying that advice of the RA Authority's assessment had been forwarded to the Nature Conservation Trust. 129 There has been no evidence as to the outcome of Mr Spencer's application for assistance. Nevertheless, the communications of 6 March 2007 and 5 July 2007 suggest considerable support for Mr Spencer's contention that the effect of the State Statutes has been to occasion significant detriment to him. On the other hand, they also suggest some measure of compensation may be available to him in connection with the effect of the 2003 Vegetation Act. No submissions have been made directed to whether that compensation would satisfy a putative right to just terms. 130 Mr Spencer has no right to be granted development consent. Further, it appears that he has been refused development consent that would permit vegetation clearing of Saarahnlee. Such refusal of development consent may not be different from a case where, for example, development consent for proposed development is refused because the proposed development may present dangers to traffic or create undesirable effects on the surrounding community generally. There is a real question as to whether the withholding of development consent, in accordance with relevant principles for the grant or withholding of consent, entails an acquisition (see Bone v Mothershaw [2003] 2 Qd R 600 at 611 and Waterhouse v Minister for the Arts and Territories [1993] FCA 548 ; (1993) 43 FCR 175 at 180-185). 131 However, Mr Spencer contends that, in the circumstances of the restrictions and prohibitions that apply to Saarahnlee, there has been such a taking or acquisition of certain of the incidents of his ownership as to constitute acquisition or expropriation. He points specifically to all of the Rights and Interests identified in his statement of claim, including the Carbon Rights. 132 First, Mr Spencer identifies improvements consisting of timber treatment and pasture improvement. He says that, by the operation of the 1997 Vegetation Act and the 2003 Vegetation Act, he has lost the benefit of those improvements. Such improvements may well increase the value of land, so far as the improvements continues to exist. Mr Spencer appears to contend that he can no longer maintain the benefit of the improvements because he is now prohibited from clearing native vegetation so as to maintain that benefit. 133 Second, Mr Spencer says that the prohibition on clearing native vegetation prevents him from engaging in profitable undertakings consisting of the keeping of a special breed of sheep and various eco-service projects. The question of whether the effect of the prohibition on the clearing of native vegetation prevents the undertaking of those activities is a matter of fact and degree. Whether the loss of the opportunity to engage in those activities is such a restriction on the use of Saarahnlee as to prevent any reasonable use, so as to constitute an acquisition or taking will depend upon the ultimate findings of fact as to any reasonable use to which Saarahnlee can still be put, notwithstanding the prohibition on the clearing of native vegetation. 134 Third, Mr Spencer identifies wood on the terrain, timber in trees and millable timber. Mr Spencer refers more specifically to the loss of causes of action for compensation in respect of resumption rights arising under Crown leases in respect of parts of Saarahnlee. Mr Spencer's contention appears to be that New South Wales instrumentalities are entitled to take timber from Saarahnlee, but must compensate Mr Spencer for the timber taken. The effect of the prohibition on clearing native vegetation is that the timber cannot be cleared and therefore Mr Spencer has lost the opportunity of being compensated for that timber. To the extent that growing timber on Saarahnlee is capable of being harvested, any prospective value from such harvesting has been lost by reason of the prohibition on the clearing of native vegetation. Whether the loss of the opportunity of clearing further timber is a sufficient restriction on the use of Saarahnlee so as to constitute a taking or acquisition may well be a question of fact or degree. 135 No attempt has been made at this stage to place a value on the deterioration in value of Saarahnlee flowing from the consequences just described of the restriction on the clearing of native vegetation. All of the Rights and Interests, as described above, are incidents of being the holder of leasehold or freehold title in respect of Saarahnlee. Whether the loss of all of those Rights and Interests is sufficient to constitute something more than mere regulation and constitute a taking or acquisition is a question of fact and degree to be assessed after all of the evidence is in. 136 The Carbon Sequestration Rights may be in a different category. Section 88AB of the Conveyancing Act 1919 (NSW) ( the Conveyancing Act ) provides that a forestry right is to be deemed, for all purposes, to be a profit à prendre. A carbon sequestration right in relation to land means a right to the legal, commercial or other benefit, whether present or future, of carbon sequestration by any existing or future tree or forest on the land after 1990. Carbon sequestration by a tree or forest means the process by which the tree or forest absorbs carbon dioxide from the atmosphere. 138 The effect of those provisions of the Conveyancing Act is that Mr Spencer could grant a carbon sequestration right in respect of Saarahnlee as a profit à prendre. He would be entitled to receive consideration for such a grant. The effect of such a grant would be for Mr Spencer to confer on the grantee the legal, commercial or other benefit of the process by which trees on Saarahnlee absorb carbon dioxide from the atmosphere. Such a right may well be valuable if a mechanism for trading in such rights were to be established. 139 However, Mr Spencer's contention appears to be that it would be possible and feasible for him to confer a right to the legal, commercial or other benefit of carbon sequestration by trees on Saarahnlee after 1990 only if he continues to have the right to decide whether carbon sequestration by trees or forests on Saarahnlee should be permitted to continue. He says that the effect of the restriction on the clearing of native vegetation is that carbon sequestration is effectively compulsory on Saarahnlee. The consequence is that there is no longer any right to the legal, commercial or other benefit of carbon sequestration that is left for him to confer on a third party by a grant of a carbon sequestration right. To that extent, he says, the effect of the restriction is to deprive him of the benefit that he could derive from the granting of carbon sequestration rights in relation to Saarahnlee. 140 Mr Spencer's claim in relation to the Carbon Abatement Rights is by no means clear but appears to be based on a similar notion as that described above in relation to the Carbon Sequestration Rights. Mr Spencer says that both before and after 1990, there has been direct human induced reforestation on Saarahnlee. That reforestation led to the establishment of carbon reservoirs by sinks, of which only the reforestation after 1990 has been recognised. The pre-1990 reforestation has effectively been treated as part of the national estate. He says that a benefit would be realised by agreeing to the abatement of land clearing. However, he has been deprived of that benefit by the effect of the restriction on the clearing of native land, such that he can no longer realise the benefit of voluntarily undertaking the abatement of land clearing. 141 Mr Spencer also advances contentions concerning what he characterises as his "land use change rights", which I understand to refer to the Carbon Rights. . He says that, but for the State Statutes, the Carbon Rights would be amenable for sale on a voluntary emissions reduction market. He says that, as the actions required to provide for access to such a market have now been denied to him, there has been an acquisition of the Carbon Rights. 142 Mr Spencer concludes that all of the Rights and Interests, including the Carbon Rights, are property within the meaning of s 51(xxxi). As I apprehend the contention, Mr Spencer says that all of the Rights and Interests have been acquired by the effect of the 1997 Vegetation Act and the 2003 Vegetation Act. Mr Spencer says that his loss includes not only the loss of improvements, such as timber treatment, pasture improvement and the taking of wood and timber for commercial purposes but the linked eco-services projects that he had in mind. He says that the commercial or monetary value of those rights includes the depreciated cost of the improvements, the extinguished chose in action against the State and the lost Carbon Sequestration Rights and Carbon Abatement Rights. He says that, as a consequence of the actions taken by New South Wales, instigated and authorised by the Commonwealth through the Financial Assistance Act and the Natural Heritage Act, his whole farming operation on Saarahnlee has been rendered commercially unviable. 143 Mr Spencer also says that the combination of the Natural Heritage Act with the 1997 Vegetation Act and the 2003 Vegetation Act has resulted in Australia's being able to meet its commitments under international law that would otherwise have been impossible. Correspondingly, he contends, he has lost the benefit of recognised property interests in Saarahnlee as a consequence of the general prohibition of or restriction on clearing existing native vegetation on Saarahnlee. 144 Mr Spencer contends that, having regard to the obligations of the Commonwealth under the Kyoto Protocol, the Commonwealth derives a benefit arising from the 1997 Vegetation Act and the 2003 Vegetation Act, being a significant saving in costs and expense that would otherwise need to be incurred. Mr Spencer points to the affidavit evidence of the First Assistant Secretary, Strategies and Coordination Division, of the Department of Climate Change of the Commonwealth ( the Secretary ). The Secretary said that a wide variety of measures introduced in Australia are contributing to Australia's ability to meet its target under the Kyoto Protocol and that examples of measures that have a significant incidental benefit include State governments introducing vegetation management legislation, such as the 1997 Vegetation Act and the 2003 Vegetation Act, to prevent wide scale destruction of forest cover on agricultural lands, protect native species and ecosystem habit, and prevention of soil degradation and water salinity. 145 Mr Spencer also relies upon a concession made by the Commonwealth, for the purposes of the interlocutory hearing, that, if the Commonwealth did not have the ability, for the purposes of its obligations under the Kyoto Protocol, to account for the emissions reductions resulting from reducing land clearing, in the period between 2008 and 2012, the Commonwealth would need to take other measures to reduce emissions in order to meet its obligations and such measures would be likely to involve expense to the Commonwealth. 146 Mr Spencer also points to Australia's report under the Framework Convention dated 28 November 2005. In that report, the Minister for the Environment and Heritage said that Australia's size, diverse environments and above average population growth, concentrated along an extensive coastline, expose it to a wide range of potential impacts and costs arising from climate change. The Minister also said in the report that net land use, land use change and forestry emissions fell by 93.5% between 1990 and 2003. Thus, Mr Spencer says, with the benefit of land use change, the Commonwealth has achieved a very significant saving in costs that would be incurred in otherwise meeting its target under the Kyoto Protocol. He says that the only means of meeting its commitment, in the absence of actually reducing emissions in that way, would be by purchasing offsets on the international market. Mr Spencer asserts that he has suffered a corresponding loss as a consequence of the 1997 Vegetation Act and the 2003 Vegetation Act. 147 It is clearly debatable whether the comparison proposed by Mr Spencer between the alleged detriment to him, on the one hand, and the purported benefit to the Commonwealth, on the other, has validity. The so called benefit to the Commonwealth is concerned with its obligations in international law under the Framework Convention and the Kyoto Protocol. While the Kyoto Protocol has been ratified by the Commonwealth, that does not create any obligation on the part of the Commonwealth under the municipal law of Australia. 148 The Commonwealth, of course, is a polity that is capable of owning property and incurring obligations under municipal law. However, the obligation owed under international law to the other parties to the Framework Convention and the Kyoto Protocol is not an obligation that could be enforced against the Commonwealth under the law of Australia or of any State. On the other hand, the Commonwealth accepts that it derives a benefit in relation to its international obligations by reason of restrictions imposed on the clearing of native vegetation and that to achieve that benefit by other means could incur substantial expense. In the light of the conclusion that I have reached that there is an arguable case that there has been an acquisition, it is not necessary to express a final view on that question. 149 I consider that Mr Spencer has established that there is a serious question to be tried as to whether he has suffered such sufficient detriment as a consequence of the 1997 Vegetation Act and the 2003 Vegetation Act as might constitute a taking or acquisition in respect of Saarahnlee. Further, to the extent that there was a benefit to be derived from the grant of carbon sequestration rights by undertaking voluntary restraint, it is certainly arguable that Mr Spencer has been deprived of that benefit. Whether the restriction is such as to constitute a taking or acquisition or expropriation may depend upon detailed evidence of value. Nevertheless, there is at least a seriously arguable case for concluding that there has been an acquisition of property of Mr Spencer's. 150 The critical questions, however, are whether or not either the Financial Assistance Act or the Natural Heritage Act is properly characterised as a law with respect to the acquisition of Mr Spencer's property and whether the alleged acquisition or expropriation of Mr Spencer's property was effected or authorised by either of those laws or by any of the Inter-Governmental Agreements. That is to say, s 51(xxxi) does not authorise the Commonwealth to make laws with respect to the acquisition of property in general; it only authorises the Parliament to make laws with respect to the acquisition of property for particular purposes. Mr Spencer does not contend that either the Financial Assistance Act or the Natural Heritage Act is invalid because it is a law with respect to the acquisition of property for a purpose other than a purpose for which the Parliament of the Commonwealth has power to make laws. 152 The terms of agreements or grants made pursuant to the Natural Heritage Act or the Financial Assistance Act cannot have any bearing on the validity of those laws themselves. The laws were either valid or invalid when they were enacted. Subsequent action could not render them invalid if they were valid when enacted. On the other hand, as suggested above, if any of the Inter-Governmental Agreements effected or authorised an acquisition of property otherwise than on just terms, and that agreement was only authorised by either of the Commonwealth Statutes, it may be arguable that that inter-governmental agreement was invalid or inoperative, to the extent that it effected or authorised such an acquisition. I shall address later the question of whether any of the Inter-Governmental Agreements, of itself, effected or authorised any acquisition of property. 153 Putting aside the question of whether or not any of the Inter-Governmental Agreements effected or authorised any acquisition of property, it may be at least arguable that, if either of the Commonwealth Statutes authorised an agreement that could effect or authorise an acquisition of property, then, to that extent, that law could fairly be characterised as being one with respect to the acquisition of property. However, that would not be an end of the matter so far as this proceeding is concerned. The question in this proceeding is whether Mr Spencer can demonstrate that there is at least an arguable case for the proposition that the acquisition of property about which he complains, namely the imposition of restrictions and prohibitions by the State Statutes, was authorised or effected by either of the Commonwealth Statutes or by any of the Inter-Governmental Agreements. 154 Neither the Natural Heritage Act nor the Financial Assistance Act purports to authorise any particular agreement. None of the provisions of either of the Commonwealth Statutes requires the Commonwealth to enter into any particular agreement. Nor does either law require the imposition of any condition upon any agreement between the Commonwealth and a State that would require the State to acquire property or, more relevantly, to impose restrictions on the clearing of native vegetation. None of the provisions of either law requires that the Commonwealth impose terms involving the acquisition of property or the imposition of restrictions on the clearing of native vegetation, as a condition of the grant of financial assistance to a State. 155 The direct legal and practical operation of each of the Commonwealth Statutes is confined to rights, duties, powers and privileges as between the Commonwealth and a State to which a grant is made. The direct legal and practical operation of neither of the Commonwealth Statutes affects any vested proprietary right or cause of action of Mr Spencer in any way. 156 The Commonwealth says that, even if Mr Spencer were able to establish that either of the Commonwealth Statutes was enacted for the purpose or object of inducing a State to apply restrictions on the clearing of native vegetation on land, that would be insufficient to demonstrate invalidity. The Commonwealth contends that each of the Commonwealth Statutes is a law with respect to the granting of financial assistance to States and that, as such, each is wholly supported by s 96 of the Constitution . 157 It is clear that the provisions of the Financial Assistance Act and of the Natural Heritage Act contemplate the granting of financial assistance to a State. Section 5 of the Financial Assistance Act provides so in express terms; so does s 19 of the Natural Heritage Act. Each of the Commonwealth Statutes requires that financial assistance can be given only in accordance with an agreement in writing. Such an agreement must specify the terms and conditions upon which financial assistance is granted. 158 Further, each of the Commonwealth Statutes provides that such an agreement must, in some cases, contain particular terms and conditions and may contain other terms and conditions. However, none of those terms and conditions relates to the acquisition of any property and none of them requires the imposition of restrictions on the clearing of native vegetation. Neither of the Commonwealth Statutes authorises expressly, or by necessary intendment, the making of any agreements with a State requiring the State to acquire property on unjust terms as a condition of receiving a grant of financial assistance form the Commonwealth. It follows that they should be construed as not authorising such an agreement. Accordingly, I do not consider that either of the Commonwealth Statutes can fairly be characterised as a law with respect to the acquisition of property within s 51(xxxi) of the Constitution . That, of course, begs the question as to whether or not there has been an acquisition under an impugned law. 160 Mr Spencer's contentions as to how either the Financial Assistance Act or the Natural Heritage Act effects or authorises an acquisition of any property of his are not straight forward. The link between the Natural Heritage Act and the effect of the 1997 Vegetation Act and the 2003 Vegetation Act appears to be by way of the National Vegetation Initiative. • That acquisition results in reduction of greenhouse gas emissions. • The reduction of greenhouse gas emissions is an object of the Natural Heritage Act, through the National Vegetation Initiative. • Therefore, the Natural Heritage Act is a law with respect to the acquisition that was effected by the State Statutes. 161 Mr Spencer says that the effective cause of the sterilisation of his relationship with Saarahnlee is the National Vegetation Initiative. He says that that stems from the Natural Heritage Act and what he describes as the "national scheme" provided for in the preamble to the Natural Heritage Act. He points out that the language of s 19 of the National Heritage Act, limited as it is by its express terms to the giving of financial assistance to the States, thereby excluding the purposes referred to in s 8 of the Natural Heritage Act, provides no machinery to effect any of those purposes. He argues that it can therefore be inferred that the Parliament was attempting to overreach the Constitutional protection implicit in s 51(xxxi). For that reason, he concludes, the Natural Heritage Act is a law with respect to the acquisition of property. 162 Mr Spencer says that the Natural Heritage Act authorises the establishment of a national scheme to restore native vegetation and to reduce greenhouse gas emissions, by prohibiting clearing of native vegetation. He then says that, assuming there has been an acquisition for the purpose of the National Vegetation Initiative, the whole of the Natural Heritage Act must be characterised as a law with respect to that acquisition. He says that the reduction of greenhouse gas emissions is contemplated by the Natural Heritage Act as an express or implied legitimate outcome and that the assumed acquisition must have been effected by the Natural Heritage Act. He then says that no other law of the Commonwealth achieves the result of reducing greenhouse gas emissions, which is one of the objects of the Natural Heritage Act. He concludes that the sterilisation of Saarahnlee, as he describes it, is the consequence of the statutory infrastructure established by the Commonwealth. 164 It is necessary to analyse the statutory infrastructure described by Mr Spencer, in the context of his claims. I have described above those provisions of the Inter-Governmental Agreements that may constitute inducements to New South Wales to restrict or prohibit the clearing of native vegetation. However, assuming such restrictions or prohibitions could constitute an acquisition of property, such invalidity as might be shown in relation to the Inter-Governmental Agreements does not arise because they, as alleged in the pleading, effect or authorise the acquisition of property belonging to Mr Spencer or any other identifiable citizen or entity. As indicated below, any acquisition of Mr Spencer's property that has occurred and in respect of which he makes a complaint was effected or authorised by one or other of the State Statutes. 165 One of the purposes of the Natural Heritage Account is the National Vegetation Initiative, the primary objective of which is to reverse the long term decline in the extent and quality of Australia's native vegetation cover. Accordingly, amounts standing to the credit of the Natural Heritage Account can be debited for the Natural Vegetation Initiative. So much is expressly provided for in the Natural Heritage Act. However, the question is whether any of the Inter-Governmental Agreements required, or purported to require, New South Wales to enact legislation that would effect or authorise an acquisition by imposing restrictions or prohibitions on the use of, or the clearing of, native vegetation on any land in New South Wales. 166 The most relevant of the Inter-Governmental Agreements is the 1997 Agreement, followed by the 2003 Agreement, which appears to be supplemental to it. The 2000 Agreement, on the other hand, is concerned with salinity and water quality and the 2002 Agreement appears to be supplemental to the 2000 Agreement. In essence, as I understand Mr Spencer's contentions, if the 1997 Agreement does not provide a sufficient connection between the Commonwealth Statutes and the alleged sterilisation of Saarahnlee, none of the other Inter-Governmental Agreements will have any greater relevance to the present question. Accordingly, it is necessary to concentrate on the 1997 Agreement. If there is insufficient connection between the Commonwealth Statutes and the sterilisation of Saarahnlee by the operation of the 1997 Agreement, the other Inter-Governmental Agreements will not assist Mr Spencer's case. 167 The 1997 Agreement established a framework under which the Commonwealth and New South Wales would work cooperatively for the purposes of s 19 of the Natural Heritage Act. The 1997 Agreement deals with funds provided to New South Wales under the Natural Heritage Act for programs set out in the Natural Heritage Act, including the National Vegetation Initiative. In particular, Attachment A to the 1997 Agreement described Commonwealth programs and delivery arrangements, including the National Vegetation Initiative, the national objectives of which were said to include conserving remnant native vegetation and restoring environmental values and productive capacity of Australia's land and water by means of revegetation. 168 Attachment C to the 1997 Agreement sets out the integrating framework that is to facilitate the integrated planning and implementation of Natural Heritage Trust projects and programs, which must be taken to include the National Vegetation Initiative. Attachment C provides that implementation of the 1997 Agreement will occur within the framework of stated policies and strategies, including the National Vegetation Initiative. 169 Briefing Paper No 6/99, entitled Native Vegetation in NSW : An Update , published by the NSW Parliamentary Library Research Service in March 1999, commented on the introduction of New South Wales State Environmental Planning Policy No 46 ( SEPP 46 ), which restricted the clearing of native vegetation. The Briefing Paper refers to the 1997 Vegetation Act and its objects. It then refers to Commonwealth initiatives, including the National Vegetation Initiative, which it says was established as part of the Federal Government's Natural Heritage Trust. • $254 million to expand revegetation activities, with the goal of building up to an additional 250,000 hectares per year by the year 2001. The Briefing Paper says that the aim of the National Vegetation Initiative is to ensure that the rate of revegetation in Australia exceeds the rate of clearance. 170 The Briefing Paper concludes by saying that the 1997 Vegetation Act provides legislative means to protect native vegetation on freehold land in the rural areas of New South Wales. The objects of each of the State Statutes include providing for the conservation and management of native vegetation, encouragement and promotion of native vegetation management, protecting native vegetation, improving the condition of existing native vegetation and encouraging the revegetation of land with appropriate native vegetation. 171 However, there is no mention in either of the Commonwealth Statutes to any acquisition of property and neither of them purports, in terms, to authorise an acquisition of property or to require the imposition of restrictions on the clearing of native vegetation on land. Mr Spencer has not identified any provision of either of the Commonwealth Statutes that requires New South Wales either to enact the 1997 Vegetation Act or the 2003 Vegetation Act or to decline or refuse to grant development consent in respect of the clearing of native vegetation on any land. More specifically, neither of the Commonwealth Statutes expressly requires, or refers to, the imposition of any prohibition on the clearing of native vegetation. There is no apparent connection between the provision of funds by the Commonwealth to New South Wales pursuant to either of the Commonwealth Statutes, on the one hand, and the refusal by officers of New South Wales to grant development consent under the State Statutes for the clearing of native vegetation, on the other hand. 172 In other words, there is no basis for concluding that the enactment of either of the State Statutes or the exercise of the discretion to refuse development consent under either of the New South Wales Statutes was either effected or authorised, or indeed directed or required, by either of the Commonwealth Statutes. Nor does 1997 Agreement require or affect or authorise the exercise of any discretion under the State Statutes to refuse development consent for the clearing of native vegetation on any land. 173 If there has been an acquisition of property of Mr Spencer's, by reason of the imposition of restrictions on his freedom to act in relation to Saarahnlee and prohibition on clearing native vegetation and the refusal to grant development consent under the EPA Act for clearing native vegetation on Saarahnlee, that acquisition was the consequence of the State Statutes. There is no challenge to the validity of either of the State Statutes by Mr Spencer. They are not in any way dependent upon the validity of any of the Inter-Governmental Agreements. They do not refer to any of the Inter-Governmental Agreements. Other than through thee Inter-Governmental Agreements, there is no connection between the Commonwealth Statutes, on the one hand, and the detriment or harm that Mr Spencer claims to have suffered by reason of the restrictions imposed by the State Statutes, on the other hand. More specifically, neither of the Commonwealth Statutes is concerned with any of the Rights or Interests, including the Carbon Rights, identified in Mr Spencer's statement of claim. 174 Mr Spencer says that a statute or scheme intended to circumvent the Constitutional guarantee implicit in s 51(xxxi) will not be authorised by s 51(xxxi). His allegation that the Commonwealth and New South Wales are parties to a scheme to evade or avoid the effects of s 51(xxxi) is based upon a number of references to the need for cooperation between the Commonwealth Government and the State Governments in a federation, in order to achieve the objects of the Kyoto Protocol. However, while counsel for Mr Spencer made that assertion on a number of occasions in the course of argument, no direct link was identified between the Commonwealth Statutes, on the one hand, and the State Statutes, on the other hand. 175 If the effect of any of the provisions of the 1997 Agreement, or any of the other Inter-Governmental Agreements, is to require the imposition of restrictions of the kind imposed by the State Statutes, it may be arguable that such provisions are beyond the power of the Commonwealth in so far as they contemplate an acquisition of property other than on just terms. However, the invalidity of a provision of one of the Inter-Governmental Agreements would not affect the validity of either of the State Statutes or the validity of any of the provisions of either of the State Statutes. The State Statutes operate and have effect by reason of their being valid statutes of the Parliament of New South Wales. It is the provisions of the State Statutes that have effected or authorised any acquisition or expropriation of Mr Spencer's property. None of the provisions of the State Statutes and no action by any officer of New South Wales depends in any way on the operation or effect of any of the Inter-Governmental Agreements. Thus, even if some invalidity of the Inter-Governmental Agreements could be established, that invalidity could not in any way impugn the effect of the State Statutes. 176 There is also an assertion in paragraph (2.9) of the statement of claim that New South Wales has assigned to the Commonwealth carbon rights derived from the imposition of restrictions by the State Statutes. No particulars of the assignment are provided. While that assertion was not relied on in support of the application for interlocutory relief, counsel for Mr Spencer indicated that it would be pressed at the final hearing and that it was intended to support the allegation by material obtained on discovery. At this stage, of course, any application for discovery would be premature and it would be necessary for Mr Spencer to demonstrate that there is at least some basis for making the assertion before discovery would be ordered on that question. There is no material before the Court at present that is capable of supporting the assertion or that would justify discovery in relation to that assertion. 177 I do not consider that there is a reasonable basis on which Mr Spencer can establish that any alleged acquisition of his property by reason of the enactment of the State Statutes, coupled with the exercise of discretions by officers of New South Wales, was authorised or effected by either of the Commonwealth Statutes or any of the Inter-Governmental Agreements. Alternatively, the Commonwealth says that Mr Spencer's claims do not give rise to any matter for the purposes of Chapter III of the Constitution . Putting it another way, the Commonwealth says that there is no current controversy as to some immediate right, duty or liability on the part of Mr Spencer that falls for determination by the Court: Accordingly, the Commonwealth says, there is no matter within the meaning of Chapter III of the Constitution (see Re The Judiciary Act 1903-1920 and Re The Navigation Act 1912-1920 [1921] HCA 20 ; (1921) 29 CLR 257 at 265, Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Limited [2000] HCA 11 ; (1999) 200 CLR 591 at 611 and Re McBane; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2001) 209 CLR 372 at 459). 179 The Commonwealth says that, by his statement of claim, Mr Spencer seeks to impugn the Commonwealth Statutes, each of which relates solely to funding and administrative arrangements between the Commonwealth and the State of New South Wales. It says that Mr Spencer's private rights or interests are not affected, or are not affected in a relevant sense, by the subject matter of the Commonwealth Statutes. As I have said, this contention may simply be another way of saying that, even if there is some element of invalidity in either of the Commonwealth Statutes, neither of them effects or authorises any acquisition of property of Mr Spencer's. 180 Thus, the Commonwealth says, even if it be the case that some provisions of the Commonwealth Statutes are invalid, in not satisfying s 51(xxxi), and even if financial assistance provided to New South Wales by the Commonwealth under those provisions and the Inter-Governmental Agreements pursuant to which the financial assistance was provided, were all unauthorised, none of that will affect the position of Mr Spencer in relation to the State Statutes. Mr Spencer does not, in this proceeding challenge the validity of either of the State Statutes. Even if the provision of financial assistance to New South Wales and the Inter-Governmental Agreements are unauthorised, Mr Spencer will continue to be bound by the 2003 Vegetation Act. It is the effect of the prohibitions and restrictions contained in the 1997 Vegetation Act, followed by the 2003 Vegetation Act, that are the font of the deleterious affectation of the Rights and Interests, including the Carbon Rights. That effect will continue to be operative even if some invalidity of the Commonwealth Statutes were established. 181 The lack of authorisation of the financial assistance or the lack of authorisation of the Inter-Governmental Agreements could not affect the validity of either of the State Statutes. Each of them was plainly intended to have effect unconditional upon the validity of and unconditioned by either of the Commonwealth Statutes and irrespective of any of the Inter-Governmental Agreements (see Pye v The Commonwealth at page 81-2). That is really no more than saying that, even if there has been an acquisition of Mr Spencer's property, that acquisition was not effected or authorised by either of the Commonwealth Statutes. If that is so, Mr Spencer arguably lacks a requisite interest in the validity of either of the Commonwealth Statutes (see Pye v Renshaw [1951] HCA 8 ; (1951) 84 CLR 58 at 83, where it is described as "an assumption of doubtful validity" that the plaintiff in that case had such an interest; but see also obiter dicta in Combet v The Commonwealth [2005] HCA 61 ; (2005) 224 CLR 494 at 556 and 618-622). He says that, by the Natural Heritage Act, and presumably the 1992 Financial Act, which established a national scheme, the Commonwealth wrongfully obtained Mr Spencer's property. He says that, if it be accepted that the Commonwealth has derived a benefit and he has suffered a corresponding or correlative detriment, there is a case of conversion or trespass in relation to his property. Further, Mr Spencer says, the Commonwealth has constituted a Constitutional tort in relation to Mr Spencer's property interests. Mr Spencer's submissions do not expand on those propositions. 183 However, Mr Spencer's claim for an order that the Commonwealth return to him any property expropriated or acquired and his claim for damages must depend upon a finding that the Commonwealth has itself or by its servants or agents, in some way, acquired property of Mr Spencer's. The Commonwealth could not be required to return property that may have been expropriated or acquired by New South Wales, albeit that the Commonwealth has derived some benefit under international law. 184 I do not comprehend how it can be said that the Commonwealth has committed any conversion of, or trespass to, any property of Mr Spencer. It is difficult to see how either the passing of a statute, albeit an invalid statute, or the making of an agreement between the Commonwealth and New South Wales, even on the assumption that it is an unauthorised agreement, could possibly constitute conversion of, or trespass to, any property, without some interference with that property by the Commonwealth or its servants or agents. None is alleged. 185 In any event, the allegations, as I understand them, are wholly dependent on the proposition that each of the Commonwealth Statutes is invalid. For the reasons given above, I have concluded that there is no arguable case for supporting that proposition. That assertion is based on a decision of the Supreme Court of New South Wales in which a proceeding brought by Mr Spencer against the Australian Capital Territory, the State of New South Wales and the Commonwealth was summarily dismissed (see Spencer v The Australian Capital Territory [2007] NSWSC 303). 188 The Commonwealth contends that the cause of action pleaded in this proceeding is identical to that pleaded in the Supreme Court proceeding. Alternatively, the Commonwealth says that the cause of action relied on in the present proceeding is critically dependent upon an alleged state of fact or state of law, the existence of which was a matter necessarily decided unfavourably to Mr Spencer in the Supreme Court proceeding. 189 The Commonwealth says that the orders made by the Supreme Court of New South Wales determine the whole of the principal cause of action as between Mr Spencer and the Commonwealth in that proceeding. Accordingly, it says, the orders are final and not interlocutory in nature (see Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 at [2] , [16], [164] and [180]-[182]). 190 Mr Spencer has foreshadowed a reply to the Commonwealth's defence, in so far as it raises the doctrines of res judicata and issue estoppel. He says that the proceeding in the Supreme Court did not resolve, on a final basis, or at all, any of the issues raised in the present proceeding. Mr Spencer's counsel informed the Court that Mr Spencer has appealed from the orders of the Supreme Court and that that appeal is yet to be resolved. Clearly, if such an appeal were to be successful, there could be no issue estoppel or res judicata arising out of the decision at first instance. So long as there is still a competent appeal on foot, no question has been finally determined by the Supreme Court proceeding. 191 In addition, Mr Spencer says that it would be unconscionable for the Commonwealth to rely on the orders of the Supreme Court because Mr Spencer was not legally represented and the divisional judge in the Supreme Court made factual errors and did not have before him all of the evidence that will be tendered in the present proceeding. Those matters appear to me to have no substance. It is no answer to a plea of res judicata or issue estoppel that the evidence is different or that an error of fact was made in the first proceeding. One purpose of the doctrines of res judicata and issue estoppel is to prevent the relitigation of the same issue with the possibility of different outcomes because the evidence is different. No such reply should be permitted since it would be futile. 192 The question of whether or not a plea of res judicata or issue estoppel is otherwise available to the Commonwealth will depend upon an examination of the precise facts and issues before the Supreme Court and the reasoning that led to its conclusion. It may be a question that could be appropriately dealt with as a separate question. However, I would not be disposed to dismiss Mr Spencer's present claim solely on the basis of the defence of res judicata or issue estoppel postulated by the Commonwealth. Putting it the other way, I do not consider that there is a reasonable prospect that Mr Spencer will succeed in obtaining the final relief that he currently claims in the proceeding. It may be arguable that property of Mr Spencer's has been acquired. However, I do not consider that Mr Spencer has shown that he has a reasonable prospect of establishing that any acquisition that may have occurred in respect of any property of his was effected or authorised by either of the Commonwealth Statutes or any of the Inter-Governmental Agreements. The Commonwealth Statutes and the Inter-Governmental Agreements do no more than authorise the making of financial grants to the States under s 96. Whether Mr Spencer has standing to seek to impugn any of the Inter-Governmental Agreements and the financial grants make under them is a question for another proceeding. Even if he were to be successful in that endeavour, it would do nothing to restore any property acquired from Mr Spencer as a result of the State Statutes for the reasons explained above. However, I shall say something about that question. 195 In considering the balance of convenience, the Court must assess the inconvenience to the respondent of the grant of interlocutory relief, on the assumption that ultimately the respondent is successful, and compare that with the inconvenience of the refusal of interlocutory relief to the applicant, on the assumption that the applicant ultimately succeeds. 196 Special considerations may apply where the interlocutory relief sought would adversely affect the public interest. Clearly enough, restraining the Commonwealth from taking any steps to establish a domestic emissions trading scheme, unless Mr Spencer's alleged interests are accommodated within the scheme, would have a significant effect on the public interest. In such circumstances, Mr Spencer may need to show a probability, even a distinct probability, of success in order to obtain interlocutory relief (see Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 154-156). 197 Mr Spencer contends that the balance of convenience favours him because he claims that he has carbon sequestration rights in relation to Saarahnlee and that the Commonwealth has, by its actions to date, assumed those rights by including them in its national greenhouse account figures for the purpose of reporting its obligations in international law under the Kyoto Protocol. He says that, if interlocutory relief is not granted, the Commonwealth will continue to receive the benefits of his intangible property rights without providing compensation. He says that, while the question is being litigated, the property in question should not be used. 198 Mr Spencer wants to retain the right to participate in a carbon trading market and to trade the Carbon Rights at the market rate when trading on any such a market commences. He says that, if the market mechanism that the Commonwealth creates does not allow his rights to be traded, he will lose the benefit of those rights. Mr Spencer says that the existence of his rights needs to be assessed before any such market comes into existence, so that both he and the Commonwealth know that the rights exist and that the Commonwealth is required to provide compensation for them. He says that, if a carbon trading market is created without that question being resolved by the Court, the Commonwealth may create a scheme that gives no credit to Mr Spencer's rights and he will suffer loss. Mr Spencer contends that, if the Commonwealth is not enjoined, in the terms claimed by him, the Commonwealth will continue to assume the benefit of the Carbon Rights and will have no reason to compensate him for the loss of those rights should a carbon trading market come into existence that does not recognise carbon sequestration rights arising from agriculture. 199 Mr Spencer's evidence of the threat of irreparable damage is based on a media release published by the Minister for Climate Change and Water on 17 March 2008. By the media release, the Minister announced the Commonwealth's detailed timetable for introduction of emissions trading. • July 2008: public release of a Green Paper on emissions trading design, drawing on preliminary consultations. • December 2008: public release of exposure draft legislation. • March --- Mid 2009: Bill considered by parliament. • 2009: consultation on emissions trading regulations. • Third quarter 2009: Act enters into force, regulator established. • 2010: emissions trading scheme will commence. 200 The media release asserts that the introduction of emissions trading will constitute the most significant economic and structural reform undertaken in Australia since the trade liberalisation of the 1980s. It says that emissions trading will place a limit on the amount of emissions that will be allowed to be produced and asserts that the Commonwealth will take a careful and methodical approach to finalising the design of emissions trading in order to get the best results for Australia's climate while minimising the risks for the economy. 201 The media release also says that the Minister for Climate Change and Water and the Minister for Agriculture, Fisheries and Forestry will begin discussions with leaders in the agriculture sector soon. The media release also says that the proposed Green Paper will canvas options and preferred approaches on issues, such as which industry sectors will be covered and how emission caps will be set. It will also include ways to address the impacts of emissions trading on Australian households, emissions-intensive trade-exposed industries and other strongly affected sectors. 202 The Secretary of the Department gave evidence that the Commonwealth has decided that it will implement a legislative based emissions trading scheme in 2010, as a key part of its domestic emissions reduction policy framework. The Secretary said that the Commonwealth had not yet taken decisions as to which sectors of the economy would be included and who would be the liable parties that are required to reduce their emissions under the Emissions Trading Scheme. She also said that the Commonwealth has not decided whether or not forest plantation owners or individual land holders will be liable parties under the Emissions Trading Scheme and therefore be required to hold emissions permits for the greenhouse gases that they emit. 203 The Secretary also said that the Commonwealth has not decided on the nature of the emissions reductions trajectory or the scheme caps that would undermine the scheme or whether there will be a link between emissions permits traded under the emissions trading scheme and the Kyoto Protocol assigned amount units. It is possible the two systems will be separate with no or limited fungability between the two. 204 Finally, the Secretary said that the Commonwealth has announced that it will consult with the agriculture and forestry sectors on the question of their inclusion in the scheme and the time frame for that inclusion. However, the Commonwealth is yet to take decisions on whether forest-related offsets would be allowed in the emissions trading scheme. If offsets were allowed, in principle, landholders could receive credit for establishment of new forests or for maintaining or enhancing the existing forests on their land. Whether or not existing forests on private land would be eligible to generate offsets for the emissions trading scheme is yet to be the subject of decision by the Commonwealth. 205 Assuming, for the purpose of considering the question of balance of convenience, that Mr Spencer has demonstrated that there is a serious question to be tried as to whether he is entitled to final relief, I have a difficulty in understanding how it can be said that the interlocutory relief claimed by Mr Spencer is related to the final relief that he claims in the proceeding. In effect, Mr Spencer appears to be contending that the Commonwealth should not be permitted to legislate with respect to the establishment of an emissions trading scheme until such time as the Court has determined whether or not Mr Spencer has the rights that he claims in the proceeding. That contention appears to me to be quite misconceived. 206 Mr Spencer's claim for interlocutory relief does not depend upon the effect of either of the Commonwealth Statutes. He effectively says that he fears that a new statutory regime or scheme may be introduced that might affect his rights. That is really a matter for a quite separate proceeding seeking quite different final relief. If there is a threat that the Commonwealth's proposed scheme will be a law with respect to the acquisition of property otherwise than on just terms, it is possible that Mr Spencer may have a cause of action in relation to that matter. However, on the present state of the proposals, which are really no more than speculation, it is impossible to say that such a cause of action will arise. More importantly, however, it does not bear on what has been the effect of either of the Commonwealth Statutes. 207 In the proceeding, Mr Spencer claims declarations concerning the invalidity of the Commonwealth Statutes and the Inter-Governmental Agreements. He also seeks an order that the Commonwealth return to him property that he claims has been expropriated or acquired without just terms. Finally, he claims damages for wrongful interference with that property. Whether or not Mr Spencer is entitled to that relief has no bearing on whether or not Mr Spencer will have access to any emissions trading scheme that might be established by future legislative acts of the Commonwealth Parliament. 208 If the legislation foreshadowed by the media release published by the Minister for Climate Change and Water has the effect of expropriating or acquiring property of Mr Spencer's, that may have some bearing on the validity of that legislation. However, Mr Spencer does not in the present proceeding seek to impugn, otherwise than by his claim for interlocutory relief, the validity of legislation foreshadowed by the Minister for Climate Change and Water. Indeed, as is apparent from the media release, the design of any proposed emissions trading scheme has not yet been finalised. A fortiori , the terms of the legislation are quite unknown. 209 The purpose of interlocutory relief is to preserve the status quo until final determination of the issues raised in the proceeding. Whether or not an emissions trading scheme is established by the Commonwealth at some time during 2009 or 2010 can have no bearing on the enjoyment by Mr Spencer of the fruits of this proceeding, even assuming he were totally successful. Whether or not the Commonwealth establishes an emissions trading scheme, the declarations claimed by Mr Spencer could still be made in this proceeding. Whether or not such a scheme is established by the Commonwealth, if legislation upon which the expropriation or acquisition depends is shown to be ineffective, the property expropriated or acquired from Mr Spencer would still exist and would continue to exist. Finally, whether or not the Commonwealth establishes an emissions trading scheme, Mr Spencer could be awarded any damages to which he is entitled for any wrongful interference with his property rights in this proceeding. 210 It must follow that, whether or not there is a serious question to be tried as to whether Mr Spencer is entitled to the relief he claims and whether or not there is a reasonable prospect of his succeeding in the proceeding, his application for interlocutory relief must fail. The question before the Court, however, is whether he has demonstrated that there is a serious question to be tried as to whether he is entitled to the final relief that he claims against the Commonwealth. Putting it the other way, the question is whether he has any reasonable prospect of obtaining that relief against the Commonwealth. Each question depends upon establishing that the Financial Assistance Act, the Natural Heritage Act or one of the Inter-Governmental Agreements is invalid in so far as it effects or authorises an acquisition or expropriation of part of Mr Spencer's property in relation to Saarahnlee. 212 I have concluded that neither the Financial Assistance Act nor the Natural Heritage Act is a law with respect to the acquisition of property. Further, neither of those laws effects or authorises any acquisition of property of Mr Spencer's that has been identified by him in the statement of claim. Similarly, none of the Inter-Governmental Agreements effects or authorises any such acquisition. It follows, in my opinion, that there is no reasonable prospect that Mr Spencer can obtain the final relief claimed in the proceeding. It also follows that there is no serious question to be tried as to whether Mr Spencer is entitled to that relief. 213 Accordingly, Mr Spencer's application for interlocutory relief must be dismissed. Further, the proceeding itself must be dismissed. 214 However, before making any orders, I propose to give the parties the opportunity of considering my conclusions and the reasons for those conclusions. In particular, I have suggested above that there are at least rational arguments that could be advanced in support of the conclusion that certain of the Inter-Governmental Agreements may be invalid in some respects. While Mr Spencer's claim that the Inter-Governmental Agreements are invalid to the extent that they effect or authorise an acquisition of his property must be rejected, he has advanced no arguments to the effect that the Inter-Governmental Agreements may be invalid in some other respects. I express no view about such arguments, since they have not been the subject of submission on either side. 215 I have referred to provisions of the Inter-Governmental Agreements that provide for compensation. As I have also observed above, no reliance has been placed on those provisions by the Commonwealth. Further, there may be a question as to whether Mr Spencer would have standing to put in question the validity of the Inter-Governmental Agreements, in circumstances where they do not either indirectly or directly effect or authorise an acquisition of his property. The essential difficulty for Mr Spencer's contentions, as they are presently formulated, is that any acquisition of property of his is effected or authorised by the State Statutes and he does not, in this proceeding, put in issue the validity of either of the State Statutes. No basis for invalidity has been suggested. In any event, New South Wales would be a necessary party to the proceeding if the question of validity were in issue. 216 Accordingly, I propose to list the matter for the making of orders, and to deal with the question of costs at a time convenient to the parties after they have had an opportunity of considering these reasons. I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

acquisition of property on just terms s 51(xxxi) validity of commonwealth statutes providing for grants of financial assistance to the states under s 96 whether the commonwealth statutes effect or authorise the acquisition of property whether the commonwealth statutes are laws with respect to the acquisition of property acquisition of property on just terms s 51(xxxi) validity of inter-governmental agreements made pursuant to commonwealth statutes providing for grants of financial assistance to the states under s 96 whether the inter-governmental agreements effect or authorise the acquisition of property whether the inter-governmental agreements are ultra vires the power to enter into them conferred on the commonwealth by the commonwealth statutes whether the inter-governmental agreements are laws with respect to the acquisition of property summary judgment s 31a of the federal court of australia act 1976 (cth) whether reasonable prospect of successfully prosecuting the proceeding whether reasonable prospect of successfully obtaining the relief sought application for interim relief injunction and damages whether serious question to be tried whether balance of convenience favours granting interim relief issue estoppel whether final or interlocutory judgment constitutional law constitutional law practice and procedure practice and procedure estoppel

They eventually plan to retire here, and have been putting aside money for their retirement, and investing some of it in Australia, since at least 1994. 2 In about February or March 2000, the Smolles attended at the ANZ bank ("the bank") in Perth where they sought, and received, certain advice. According to their draft further amended statement of claim, they made known to Marie Santa-Maria, an employee of the bank, their future plans. They claim that they told Ms Santa-Maria that they were seeking to invest money in this country that would be available to them once they came here permanently, that they were concerned about the taxation implications of any investment that they might make and, in particular, that they were concerned to ensure that they did not incur taxation liabilities in Austria. 3 In March 2000 the Smolles invested $243,500.00 in a "balanced trust investment". They did so in reliance upon the advice of Ms Santa-Maria. They claim that they soon discovered that that investment did not suit their needs, in particular because it was not tax effective. They complained to the bank, and were further advised by Ms Santa-Maria that they should switch from the balanced trust investment to "superannuation bonds". They claim that Ms Santa-Maria told them that there would be no tax payable in Austria on those bonds, and that they would receive a net return of 8.54% per annum. 4 The Smolles returned to Australia in early 2001. They attended a branch of the bank in Adelaide, and were introduced to a Tim Germein who was a financial adviser with the bank. After some discussions he confirmed Ms Santa-Maria's advice that they should take their money out of the balanced trust investment (and several term deposits which they also held) and invest in superannuation bonds. Mr Germein prepared the relevant documentation, and the Smolles signed the necessary forms. 5 Having redeemed their earlier investments, and having used the proceeds to acquire what was described as an "ANZ Personal Superannuation Bond" ("the Bond"), the Smolles claim that within days of their return to Austria they discovered that the advice that they had received from the bank was incorrect. Apparently, the Bond was not tax effective because the Smolles were liable to pay tax in Austria at the rate of at least 2.5% of its value each year. Partly for that reason, the Smolles discovered that they would not earn as much as the 8.54% net promised to them by Ms Santa-Maria. Moreover, it transpired that the tax authorities in Austria had been notified by the bank of the Smolles' investment in the Bond, and were making enquiries of their accountant about it. 6 The Smolles claim that the bank should compensate them for the losses which they say they sustained as a result of switching their earlier investments into the Bond. They rely upon various causes of action. These include negligence, breach of contract and misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth). They also rely upon various breaches by the bank of the Corporations Law and the Corporations Act 2001 (Cth). 7 The Smolles particularise their loss and damage as follows. They say that they have incurred liability to pay tax in Austria in an amount of about $44,000. They claim that they have lost the opportunity of securing better returns by investing in something other than superannuation bonds. They say that instead of achieving a return of 8.54% upon their investment, as promised, they achieved a significantly lower return. They calculate the difference as being approximately $109,000. They also claim for the cost of taxation advice in Austria, travelling costs to and from Australia, lost earnings, and various miscellaneous amounts. They claim in all a sum of approximately $410,000. 8 The Smolles' case is complicated by a separate claim which they have against their former solicitors, Leo Reynolds and Linda Gross ("Reynolds Lawyers"). They say that in about February 2001, while they were in Adelaide, they retained Reynolds Lawyers to advise them and act as their solicitors. They say that they did so in relation to a claim against the bank for compensation in respect of both the balanced trust investment and the Bond. 9 The Smolles' claim against Reynolds Lawyers is in two parts. The first alleges a breach of retainer. They say that by letter dated 26 March 2001 they instructed their solicitors to change their investment from the Bond to a life insurance product because they had become aware, by that date, that life insurance held for more than ten years would be wholly tax exempt in Austria whereas any return on the Bond was taxable. They say that, in breach of their instructions, Reynolds Lawyers failed to change their investment to a life insurance product and, indeed, failed even to notify the bank of their desires in that regard. 10 The Smolles say that had the solicitors acted in accordance with their instructions, they could have withdrawn from the Bond at any point prior to the expiration of a "cooling off" period, which they claim expired on or about 2 May 2001. 11 The second part of the Smolles' claim against their former solicitors arises out of certain advice that they were given regarding a Deed of Release prepared by the bank with a view to resolving their claims against the bank. They say that in or about August 2001 Reynolds Lawyers negligently advised them that they should sign the Deed of Release prepared by the bank, in its original form. They also say that in or about March 2002 Reynolds Lawyers went further and positively advised them that a further Deed of Release, which had been amended by the bank, covered only their claims in respect of the balanced trust investment, and not their claims in respect of the Bond. They say that acting in reliance upon that advice, they signed the Deed of Release, only to discover later that the bank maintained that it constituted a complete settlement of all matters in dispute between the parties. 12 Put simply therefore one of the Smolles' claims as against Reynolds Lawyers is that their former solicitors were negligent in failing to advise the Smolles that they would be signing away all rights to compensation against the bank, in relation to the Bond, if they executed the Deed of Release. The Smolles also claim, as against Reynolds Lawyers, that by giving the advice which they did they contravened s 52 of the Trade Practices Act (extended in its operation by s 6(3) to conduct involving the use of postal services). In the alternative, the bank seeks to have the Smolles' amended statement of claim filed on 24 April 2006 struck out pursuant to O 11 r 16(a), (b) or (c). 14 On 30 July 2007 Reynolds Lawyers filed their own notice of motion. They seek orders that the case against them be dismissed for want of prosecution. 15 Both notices of motion were heard over a number of days. On 3 July 2007, approximately six months after the bank filed its notice of motion, the Smolles filed a draft further amended statement of claim upon which they sought leave to rely. They indicated that they would no longer seek to proceed upon the amended statement of claim filed last year. However, that did not dissuade the bank from proceeding with its motion. The Smolles speak only moderate English. They filed their originating application and their first statement of claim as far back as 18 August 2004. At that time they were represented by Rigby Cooke Lawyers. However, after an apparent falling out with that firm, in March 2005 they retained Baldwins Lawyers. That retainer lasted until September of that year when Tisher Liner took over the Smolles' representation. However, in December 2005 Tisher Liner also withdrew. 17 In March 2006 the Smolles retained Saines & Partners as their fourth set of solicitors. However, on 23 March 2007, the day the bank's notice of motion came on for hearing, Saines & Partners informed the Court that they had elected to withdraw. As a consequence, the notice of motion was adjourned to 3 May 2007. The Smolles were ordered to pay the respondents' costs on an indemnity basis. As at that date the Smolles had not engaged new solicitors. I ordered that the matter be further adjourned to 6 June 2007, after being assured by Dr Smolle that he and his wife would retain new solicitors. I made a self-executing order which required the Smolles to file and serve a notice of change of solicitor by no later than 3 June 2007, failing which their application would be dismissed. I again ordered the Smolles to pay the respondents' costs on an indemnity basis. 19 On 7 May 2007 the firm of Lewis Holdway Lawyers filed and served a notice of change of solicitor, thereby taking on the Smolles' legal representation. On 23 July 2007 they filed and served two further affidavits on which they proposed to rely at trial, each sworn on 20 July 2007. 21 When this matter next came before the Court, it was apparent that two previous affidavits upon which the Smolles had sought to rely, and the two new affidavits which they had just filed, were in a form that was entirely unacceptable. For example, there was no attempt to set out in direct speech what discussions had taken place between representatives of the bank and the Smolles, merely their general impressions of what had been said. No documents were exhibited to the affidavits. However, reference was made in the vaguest of terms to a number of documents that were said to be of critical importance. The affidavits were also replete with hearsay. This made it difficult to determine whether the Smolles actually had a case or not. It also made it difficult for the respondents to know how to meet any such case. 22 In the light of these problems, I took the unusual course of adjourning each notice of motion so that Dr Harald Smolle, who would be the main witness on behalf of the applicants in this proceeding, could once again come to Australia and give evidence on oath before me. The aim was to have him set out, in detail, his version of events. It was also to have him identify and tender relevant documents. This would allow him, with the assistance of an interpreter, to explain in his own words the basis upon which his and his wife's claims rested. 23 On 25 September 2007 Dr Harald Smolle appeared before me. He was questioned extensively by Mr Williams, who by then had been retained as counsel for the Smolles. Dr Smolle's evidence occupied the best part of a day. In addition, a number of documents were produced and marked for identification. As a result, there emerged for the first time in this case a detailed account, in comprehensible form, of what Dr Smolle had to say. 24 I should say that I indicated on that day that any evidence that Dr Smolle gave would, if this matter were permitted to proceed, stand as his evidence-in-chief at the trial, subject to any objections as to admissibility. I did not permit counsel for the bank, or for Reynolds Lawyers, to cross-examine Dr Smolle. The purpose of the process was simply to obtain from him the equivalent of a coherent affidavit. I then adjourned the further hearing until 18 October 2007. She noted that it had been extraordinarily difficult for the bank to obtain proper particulars of loss and damage from the applicants, and submitted that the latest version of the statement of claim was no better, in that regard, than the two earlier versions. She submitted that the Court should refuse leave to file and serve the proposed further amended statement of claim for that and other reasons. 26 Ms Loughnan raised a number of objections to the proposed new pleading. These turned mainly upon a lack of adequate particulars, though there were some points of greater substance. She referred to the deficiencies in the various affidavits that had been sworn by the applicants, both those sworn in November 2006 and those sworn in July 2007. She complained about the applicants' failure to give proper discovery. She noted that there were significant discrepancies between the accounts given by the Smolles in their November 2006 affidavits, and in their later affidavits. She also noted that Dr Smolle had departed from the evidence which he gave in his earlier affidavits during the course of his evidence before me. 27 Ms Loughnan complained that the applicants had never adduced evidence of any additional tax that they had been obliged to pay in Austria, though they claimed that tax as one limb of their loss and damage. She complained that they had provided no satisfactory explanation as to why they had waited more than four years to redeem their investment in the Bond. She also reminded me of the many indulgences that I had granted the applicants to enable them to put their case in order, and of their repeated failure to do so. 28 Ms Loughnan went further and submitted that it was evident from Dr Harald Smolle's first affidavit, in November 2006, that his real grievance against the bank was that it had informed the Austrian tax authorities about the investment in the Bond. He stated that he was unhappy about the bank's conduct because it had assured him that his affairs would remain secret. 29 Ms Loughnan submitted that I should infer that the Smolles had sought such an assurance of secrecy from the bank because they were engaged in defrauding the Austrian revenue. She submitted that the Court should take a strong stance against such conduct, and that it should mark its disapproval of what the Smolles had sought to do by dismissing their application. 30 The bank filed and served its original defence to the Smolles' claim on 1 November 2004. That submission was consistent with the original defence which contended that by reason of the Deed of Release the Smolles were estopped, barred and/or excluded from making the claims for loss and damage. Ms Loughnan submitted that the only possible construction that could be given to the Deed of Release was that it reflected a complete settlement of all matters in dispute between the Smolles and the bank. In effect, the Smolles had signed away any rights they may have had to be compensated by the bank for losses incurred by reason of both the balanced trust investment and the Bond. Have claimed against Australia and New Zealand Banking Group Limited ACN 005 357 522 ("ANZ") compensation in relation to our investment into the ANZ Balanced Trust, Investment No. 7481751 and our investment into the PSB Growth, Investment contract 06/4834698 C212 ("the Claim"). Otherwise he would not give us the advice to invest the total amount of the Balanced Trust (investor Elke and investor Harald proportionately 50 %) in Elke's name alone for saving management fees (0,5 % p.a. of the value of the portfolio for the first three years while the investment is less than AUD 300.000,--) because he knew, we both are partner and owner of a veterinary hospital in Austria and liable to pay income tax and the additional income of capital gains will cause a tax progression when Elke is the sole investor of the P.S.A.B.! (In addition we are now informed that a further serious taxation problem occurs in Austria: an additional tax payment of 2,5 % from the value of the P.S.A.B. at the year's end!). --- Combined with the disclosure information of other ANZ-employees to the Austrian government (.........ISSUE 2) it was a poor advice to invest the money in the P.S.A.B. and therefore we demand the change of the P.S.A.B. into a life insurance (which is final taxed in Austria) immediately! (.........ISSUE 3). Also we demand a compensative payment if we loose [sic] money since inception of P.S.A.B until the switch to a life insurance similar to issue 1 (.......ISSUE 4). Finally we demand the refund of taxes paid in Austria from the time when ANZ got the document 1 "Taxation for Austrian Residents as owner of Australian Personal Superannuation Bonds" and 2 "Tax avoidance", written by our tax advisor Mag. Hoechtl dated 20. July 2001 (......ISSUE 5). We therefore enclose a subsequent Deed of Release which we suggest that you sign without alteration. It simply resolves the issue of the outstanding compensation for that one investment. The cheque in the sum $2,116.61 referred to [in] recital C is currenttly [sic] held in our trust account. Upon receipt of the signed Deed of Release from you, the balance will be paid by the ANZ and we can then compensate you in the full amount. Have claimed against Australia and New Zealand Banking Group Limited I 005 357 522 ("ANZ") compensation in relation to our investment into the ANZ Balanced Trust, Investment No. 4781751 and our investment into the PSB Growth, Investment contract 06/4834698 C212 ("the Claim"). 7481751 ("final distribution"). They made only one minor handwritten amendment. At Recital C of the Deed of Release the Investment Number was changed to read "4781751". That means, intending to come to Australia for retirement when Harald is 60 and Elke is 57 years old, we cannot consume the retourns [sic] of the life insurance at the same time even we establish the life-insurance-contract with the ANZ today! (Harald is now 51 and Elke 48 years old). He said that he had made the amendments to the original version of the Deed of Release because he had not been prepared to settle the entirety of his case against the bank for the amount offered. Rather, he had wanted it understood that the Deed of Release pertained only to the balanced trust investment. 40 In relation to the 11 March 2002 letter from Reynolds Lawyers, and the resubmitted version of the Deed of Release, Dr Smolle said that he understood, from what his solicitors had stated, that it referred exclusively to one matter, namely the balanced trust investment. Any losses incurred as a result of the Bond would still be subject to further negotiation, and possible litigation. Plainly, it would be to dismiss your application against the ANZ. But it would have to be, in my respectful submission, absolutely beyond doubt. It's not a very well drawn document, with respect, and it's not easy to deal with. Could I just have a moment to get it out? I think it's about the second recital that might be important. Yes, the issue is about what the claim is. It could be no more than compensation arising out of the investment performing poorly. The first was the decision to put the money into the balanced trust; and the second was the decision to put the money into the superannuation bond. He said he had discussions and negotiations about settling the matter, and he was offered a particular sum; but both limbs, both things, were matters that agitated him, and he was concerned about them, and they were his claim. And one has to bear in mind that this is a settlement which was reached while the moneys were still in there, and they continued to be in there for some time thereafter. So that one could also argue that the continuing claim was not one which was settled. It might be they were badly advised by their solicitors. It might be they shouldn't have gone near signing this document, but the document itself, on a reasonable interpretation, seems to encompass both limbs; namely, the claim in relation to putting them into the balanced fund, and the claim in relation to putting them into the superannuation fund. It's an objective test. And you say that the ordinary bystander, aware of these facts, would conclude that no part of this settlement reached by signing this deed of release accommodated losses incurred or to be incurred from being put into the superannuation bond? But it's a different matter to say that it encompasses all such losses, whether already incurred or to be incurred; and it's also a different matter to say whether it encompasses losses arising from bad prior advice. You can't really artificially hive those two off. That's your submission. 43 In Grant v John Grant & Sons Pty Ltd [1954] HCA 23 ; (1954) 91 CLR 112 Dixon CJ, Fullagar, Kitto and Taylor JJ accepted that a release expressed in general words will usually be read down by reference to what was in the contemplation of the parties at the time of the execution of the release. First, the general words of a release should be restrained by the particular occasion (at 123). Thus, the general words of a release are to be construed by reference to the recitals in the particular deed. Secondly, the general words in a release are limited to those things which were specially in the contemplation of the parties at the time when the release was given (at 123-124). The sole point argued on the appeal was whether the principles enunciated in Grant v John Grant applied, so as to exclude the costs order from the release. The surrounding circumstances included negotiations leading up to the final entering into of the Major Creditor's Deed of Release on 22 September 1992. At one stage in those negotiations, as was clearly evidenced by the letter of 17 December 1992, BBL would have liked to have reserved the costs order made by Rogers CJ Comm D at first instance. There is no evidence and indeed the evidence is to the contrary, that ANI ever agreed to that. There is no evidence that BBL between 17 December and the time of the execution of the Deed, did not decide in the interests of the overall commercial settlement, to forego its right to that costs order. I rejected Mr Williams' attempt to read the Deed of Release down so as to cover only the balanced trust investment and those losses incurred by reason of the investment in the Bond prior to the execution of the Deed. I could see no basis for reading the Deed of Release as permitting the Smolles to sue for future losses arising out of their investment in the Bond. Mr Williams' submission seemed to me to involve an artificial and entirely implausible interpretation of the plain language of the Deed of Release, and the clear and unambiguous definition of the "claim" that was to be settled by it. 49 Mr Williams' submission also seemed to me to be inconsistent with the "surrounding circumstances". The bank clearly intended that any settlement should apply to all claims made by the Smolles, including their claims in relation to the Bond. Notably it had rejected the amended version of the Deed of Release, executed by the Smolles on 16 August 2001, which sought to exclude certain transaction costs in relation to the switch from the balanced trust to the Bond. Reynolds Lawyers' letter of 11 March 2002 stated that the variations to the Deed of Release were "unacceptable" to the bank. As finally executed on 25 March 2002, the Deed of Release dealt specifically with the Smolles' claim against the bank for "compensation in relation to" their investment in the balanced trust and the Bond. 50 Having regard to the plain language of the Deed of Release, and the surrounding circumstances, I am of the view that the principles expressed in Grant v John Grant cannot be invoked to exclude any of the Smolles' claims in relation to the Bond from the settlement. 51 It was on this basis that I indicated that I would summarily dismiss the Smolles' claim against the bank, and provide reasons at a later date. However, I made it plain that I would do so solely on the basis of the Deed of Release, and not by reason of any of the other matters upon which Ms Loughnan relied. 52 I also indicated, on 18 October 2007, that I would not dismiss the Smolles' claim against Reynolds Lawyers on the basis of want of prosecution, despite the many failures on their part to comply with directions and orders of the Court. In part, I did so in reliance upon the principles laid down by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. The Smolles had been required to pay indemnity costs for each earlier breach of my orders, and that seemed to me to ameliorate to some degree any prejudice that Reynolds Lawyers had suffered. Bearing in mind the difficulties under which the Smolles laboured, having regard to their particular circumstances, and also taking into account the fact that they were now competently represented, I concluded that it would not be appropriate to prevent them from prosecuting their case. 53 That leaves the position as follows. The claim against the bank is dismissed. However, Reynolds Lawyers still face claims for failure to carry out instructions, breach of retainer, negligence and misleading or deceptive conduct. Reynolds Lawyers have cross-claimed against the bank, in the event that they are found liable to the Smolles. The status of that cross-claim will need to be considered at some future time. 54 On any view, if the Smolles are to succeed against their former solicitors they will have to prove not merely that the breaches alleged occurred, but also that they suffered loss or damage as a consequence. 55 That will necessarily mean that the Smolles will have to prove that they suffered loss or damage by reason of the bank's negligent advice, or misleading or deceptive conduct, and that the only reason they are unable to recover against the bank is because they signed the Deed of Release. That means that, one way or another, a number of the issues that would have had to have been determined if this case had proceeded against the bank will still have to be resolved in the proceeding against Reynolds Lawyers. Precisely where that leaves the parties will have to be resolved at some future date. 56 The application by the Smolles' against the bank will be dismissed. However, their application against Reynolds Lawyers will stand. The matter has been listed for further directions on 19 November 2007. Questions of costs in relation to each notice of motion, and any reserved costs, will be determined in due course. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

application by respondent bank to dismiss proceeding on basis that no reasonable cause of action disclosed application by respondent solicitors to dismiss proceeding for want of prosecution statement of claim inadequately particularised applicants' affidavits difficult to comprehend bank's reliance upon deed of release whether deed of release provided complete defence to applicants' claim practice and procedure

The learned federal magistrate dismissed an application in reliance on the Sex Discrimination Act 1984 (Cth) ("the Sex Discrimination Act ") brought by the applicant. In doing so, her Honour relied on r 13.10 of the Federal Magistrates Court Rules 2001 ("the Federal Magistrates Court Rules "), under which the Federal Magistrates Court has the power to dismiss a proceeding because there is no reasonable cause of action, the proceeding is frivolous or vexatious, or the proceeding is an abuse of the process of the court. Her Honour dismissed the application on all three grounds. 2 Before coming to her Honour's reasons, it is necessary to go to the history of the proceeding. In 1995, the applicant was engaged as a contractor by the respondent, which was then known as BHP Steel (RP) Pty Ltd. During the time that he was working for the respondent, the applicant made allegations that a fellow worker had harassed him sexually, by touching his genitals on several occasions. On 10 November 1995, after the applicant had ceased to work for the respondent, he lodged a complaint against the respondent, alleging sexual harassment under s 28A of the Sex Discrimination Act . That complaint was lodged with the Victorian Equal Opportunity Commission as the delegate of the Human Rights and Equal Opportunity Commission ("the Commission"). The applicant attended a directions hearing on 14 November 1997, at which the complaint was set down for hearing, in accordance with the procedure that then prevailed under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the Human Rights and Equal Opportunity Commission Act "). On 1 December 1997, the applicant failed to appear at the hearing and the Commission dismissed the complaint on two grounds: first, that the applicant had been given adequate notice of the time and place of the hearing; and second, that there was not a strong case against the respondent on the papers. 3 That decision was given on 8 May 1998. Notification was given to the applicant of the decision by letter dated 11 May 1998, which also informed him of his right to apply to this Court for review of the decision. The applicant did not then apply for review of the decision. In or about 2002, he approached the Commission again and sought to have his complaint reopened. This application was refused. 4 In or about June 2003, the applicant lodged a second complaint with the Commission with respect to the same allegations. On 24 June 2003, the Commission terminated the second complaint, pursuant to s 46PH(1)(b) and (f) of the Human Rights and Equal Opportunity Commission Act , on the grounds that it was out of time and had been dealt with adequately by the Commission. 5 On 15 July 2003, within the 28-day time limit that he was allowed, the applicant filed in the Federal Magistrates Court an application with respect to the complaint, pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act . On 29 August 2003, the respondent filed a response, seeking that the application be struck out with costs. On 10 September 2003 the federal magistrate made orders for the applicant to file and serve affidavit material in support of his application, and in response to the strike out application, and fixed the application for hearing on 7 November 2003. At that time the applicant had legal representation. I submit that because of this evidence and my availability to give evidence in relation to the sexual interference which I suffered from, my case is eminently arguable. There is no memorandum annexed to the affidavit. The basis of complaint in the affidavit appears to be what occurred around the hearing before HREOC in December 1997. Further, the affidavit does not simply fail to adequately address or justify the reasons for this unreasonable delay, it fails, in my view, to address this issue at all. Further, the affidavit of the applicant fails to address the issue of prejudice, such a very central question in these proceedings that might be occasioned to the first-named respondent. There is a complete absence of any address of that ground by the applicant. The application does not reveal on its face any action against the first respondent. The complaint is stale and I accept counsel for the first respondent's submission that the ability of the first respondent to defend itself is severely limited by the unavailability of the majority of the witnesses and the unreliability of any witnesses' recollections after so much time has lapsed. The applicant puts before the court no reasons for this unreasonable delay. 7 Although that judgment was delivered on 7 November 2003, it was not until 14 April 2008 that the applicant filed an application for leave to appeal. This application is by way of handwritten completions to a typewritten form. One of the handwritten completions is to describe the respondent as "B.H.P North Altona Melb". Obviously it will be necessary to amend the title to the proceeding to show the correct name of the respondent. Counsel for the respondent applied for such an amendment. 8 Because the judgment of the Federal Magistrates Court is an interlocutory judgment, the applicant needs an extension of time to apply for leave to appeal, pursuant to O 52 r 5(2) of the Federal Court Rules , where the period fixed by that rule is 21 days. Accordingly, the applicant is well beyond four years late in making his application. 9 Along with the application the applicant provided a draft notice of appeal. The only ground of appeal specified is a complaint that the federal magistrate described his claim as frivolous. I have endeavoured to explain to the applicant today that the word "frivolous", especially when coupled with "vexatious", is a technical legal term, in substance meaning the absence of a cause of action. The federal magistrate was certainly not describing the applicant as having acted frivolously in making his claim. 10 On 14 April 2008, the applicant also filed an affidavit. The issues involved are that I was treated by a B.H.P representative and he said that I instigated the behaviour, and I didn't even receive so much as a sorry for the incident. The reasons why leave should be granted are that I suffer with depression and other psychological illnesses. In this respect, I have concerns that her Honour dealt with the case on the basis that it disclosed no reasonable cause of action and that it was frivolous and vexatious. It was clear that para 8 of the affidavit filed by the applicant in the Federal Magistrates Court raised a sufficient claim to give rise to the possibility that he might have succeeded under the Sex Discrimination Act . I take so much to have been conceded by counsel for the respondent today. To the extent that there was any onus on the question whether the respondent, as an employer, condoned the conduct of the applicant's fellow employee, or condoned the existence of a workplace culture in which such conduct was seen to be appropriate, the onus would lie on the respondent in any proceeding. Accordingly, it is difficult to see how the federal magistrate could dismiss the case on the basis that it disclosed no cause of action. The condition precedent of having a claim dismissed by the Commission had been satisfied, and there is apparently no statutory provision that prevents repeated applications being made to the Commission, even after considerable lapse of time. Accordingly, even though the Commission dismissed the latest complaint partly on the basis of its lateness, as it was entitled to do, that dismissal itself provides an adequate statutory basis for the commencement of a proceeding in the Federal Magistrates Court. 12 Having said that, I turn to the question of abuse of process. Here once again, the proceeding in the Federal Magistrates Court had been commenced within the statutory time limit of 28 days. Accordingly, it seemed to me difficult to label it, as the federal magistrate did, as an abuse of process, on the basis of the delay that had preceded its institution. I was inclined to think that, once Parliament had fixed a statutory limitation period, it was not open to a court to dismiss a proceeding as an abuse of process, when the proceeding was brought within that period. 13 Counsel for the respondent was able to refer me to Newcastle City Council v Batistatos [2005] NSWCA 20 (2005) 43 MVR 381, in which the New South Wales Court of Appeal upheld the dismissal of a proceeding simply because of excessive delay before it was instituted, even though there appears to have been no difficulty about statutory limitation periods. The delay in that case was gross, as were the physical injuries suffered by the person who had commenced the proceeding. Nonetheless, the New South Wales Court of Appeal took the view that the proceeding should be dismissed as an abuse of the court's processes. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth (2003) 180 FLR 1; [2003] FamCA 1284 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases, is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings: see Birkett v James [1978] AC 297 ; [1977] 2 All ER 801 and Stollznow v Calvert [1980] 2 NSWLR 749. However, I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the court may not be exercised. 14 On the basis of that authority, I am not able to say that the federal magistrate in the present case could not have concluded that there was an abuse of process in bringing the proceeding in the Federal Magistrates Court, even though it fell within the statutory time limit. Her Honour took into account the very long delays that had occurred in finalising the latest proceeding in the Human Rights and Equal Opportunity Commission and it appears that she was justified in doing so. Her Honour also took into account material placed before her by the respondent, to the effect that a number of possible witnesses, who might have been called in any proceeding commenced earlier, were no longer available to the respondent as witnesses. Accordingly, it seems to me that there would be no basis on appeal for overturning her Honour's judgment that the filing of the application in the Federal Magistrates Court amounted to an abuse of the process of that court. 15 Having reached this conclusion now, I ought to conclude that I would not grant leave to appeal and therefore that I would not grant to the applicant the extension of time that he requires to seek such leave. In doing so, I do take into account both what was said in the applicant's affidavit in this Court and what he has told me in more expanded terms about his situation. I consider that, to a significant extent, the delay of more than four years in making the application for leave to appeal was explained by the applicant's situation. The applicant is serving a sentence of imprisonment and does suffer mental illness. He told me, and I accept, that his mental illness causes him to put his head in the sand and hope that things will go away and this is in part an explanation for the sporadic nature of the efforts he has made to pursue his claim of sexual discrimination over the years. I also accept that he has had great difficulty in finding legal representation in relation to this matter, representation that he did have at the time when the Federal Magistrates Court proceeding was on foot, but that he has not been able to obtain since. 16 It is not for the reason of unreasonable delay that I dismiss his application for an extension of time. It is because I regard the grant of leave to appeal, and the institution of any appeal, as futile for the reasons that I have given. The title to the proceeding be amended by substituting "OneSteel Reinforcing Pty Limited" for "B.H.P North Altona Melb" as the name of the respondent. 2. The application for leave to appeal be dismissed. 3. The applicant pay the respondent's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

summary dismissal viable cause of action shown on material whether proper to dismiss on ground that proceeding frivolous or vexatious proceeding commenced within limitation period whether abuse of process because of prejudicial delay in making complaint to human rights and equal opportunity commission practice and procedure

The application is brought under Pt 5.4 of the Corporations Act 2001 (Cth) (the Act). Such an application may be made under s 459P of the Act by ASIC, albeit only with the leave of the Court. That leave may be given if the Court is satisfied that there is a prima facie case that the company is insolvent, but not otherwise. The contention that the companies are insolvent is based upon non-compliance with statutory demands for the payment of moneys owing to Westpoint Corporation Limited. On instructions from Oren Zohar of Korda Mentha, the receiver and manager of Westpoint Corporation, statutory demands under s 459E of the Act were served on the first to the twelfth respondents on 10 March 2006. On 15 March 2006 a further statutory demand was served on the thirteenth respondent. Each of the demands was accompanied by an affidavit said to verify that the amount of the debt was due and owing by the company to Westpoint Corporation. Each verifying affidavit relied upon an examination of the books and records of Westpoint Corporation. It did not set out the transaction or transactions which gave rise to the debt. In each case, the deponent, Karen Price, stated her belief that there was no genuine dispute about the existence or amount of the debt. The amounts in issue were as follows: Eastlands Pty Ltd, $3,612,913.02; Goldtag Pty Ltd, $567,962.32; Westpoint Money Management Pty Ltd, $1,999,876.80; Asset Build (Aust) Pty Ltd, $249,244.18; Cinema City Development Pty Ltd, $1,223,314.75; Westpoint Consulting Group Pty Ltd, $172,525.16; Jetsone Pty Ltd, $22,302.14; Network Company Pty Ltd, $1,277,606.59; Pagelight Nominees Pty Ltd, $55,800.85; Kingdream Pty Ltd, $874,142.45; Juson Pty Ltd, $18,357.60; Bridgeview Holdings Pty Ltd, $1,297,256.94; Westside Brisbane Developments Pty Ltd, $123,939.16. None of the demands was satisfied, nor was any application made to set any of them aside. Mr Zohar deposed in an affidavit sworn on 29 June 2006 that on his review of the accounting records at Westpoint Corporation each of the respondents was indebted to Westpoint Corporation in the amounts as set out above. Each of the debts remained due and payable. None of the respondents had paid the amount of debts demanded, nor had any of them secured or compounded those amounts to the reasonable satisfaction of the receivers at Westpoint Corporation within 21 days after the service of demands. Mr Norman Carey filed a notice of appearance in his capacity as director of each of the respondents. He also moved for an order that the originating process be struck out. Mr Nixon submitted, in effect, that verification of the debt contemplated by s 459Q required more than the verification offered in this case based upon an examination of the books and records of Westpoint Corporation and Mr Zohar's belief flowing from his examination of those books and records. ASIC submitted that the verification of the debts required on affidavit by s 459Q was to the same standard as the verification of debts in the affidavit required to accompany a statutory demand for other than a judgment debt, pursuant to s 459E of the Act. ASIC further submitted that in this case the verification was more than an assertion of a mere belief. Mr Zohar, who had taken control of the books and records of Westpoint Corporation reviewed them and formed the view that they could be relied upon for the purpose of establishing the existence of the debts. On the basis of that review, he expressed his belief that the debts were due and payable in the amounts set out in his affidavit. There is authority for the proposition that the verification required in the affidavit supporting an application to wind the company up under s 459Q is not extensive. The same statutory formula is used in relation to an affidavit verifying the existence of a debt for the purpose of an originating application as is used in relation to the affidavit backing a statutory demand. In the case of an affidavit backing a statutory demand, what is required is formal affirmation on oath that a certain amount of money is due and payable - Azed Developments Pty Ltd v Frederick and Co Limited (1994) 12 ACLC 949; Hamilhall Pty Ltd (In Liq) v AT Phillips Pty Ltd (1994) 54 FCR 173; Carb Royale Pty Ltd v Tonkin (2000) 18 ACLC 803. In Hamilhall , Branson J discussed the requirements of an affidavit verifying the existence of debt for the purpose of s 459E(3) in relation to a statutory demand. Her Honour noted that in Azed Developments Hayne J of the Supreme Court of Victoria, as he then was, held that s 459E(3) uses the expression 'verify' in the sense of 'a formal affirmation'. The affidavit in this case did contain a formal affirmation that the total of the amount of the debts was due and payable by the respondent. In the circumstances, I am satisfied that the originating application complies with the requirements of s 459Q. Mr Carey's motion will therefore be dismissed. He is to pay the applicant's costs of the motion.

insolvency winding up application failure to comply with statutory demand affidavit in support of winding up application requirement to verify debt whether affidavit sufficient debtor companies members of finance and property group creditor company member of group verification based upon examination of books and records of creditor company verification sufficient motion to strike out winding up application dismissed corporations

CPR Property carried out cleaning and maintenance work as a subcontractor on behalf of the first respondent, the New South Wales Land and Housing Corporation ( the Corporation ), a statutory body associated with the NSW Department of Housing ( the Department ). On 24 March 2004 the Corporation prohibited its contractors from using CPR Property as a subcontractor, relying on a provision in the contracts between the Corporation and its contractors about the use of subcontractors. The applicants claim that the Corporation's conduct on 24 March 2004 contravened s 42 of the Fair Trading Act 1987 (NSW) ("[a] person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive"). They also claim that, by the same conduct, the Corporation breached a duty of care it owed to the applicants and made a negligent misstatement to the contractors. Finally, the applicants claim that, again by the same conduct, the Corporation unlawfully interfered with the contractual relationship between the contractors and CPR Property and thus committed the tort of inducing a breach of contract. The applicants contend that by reason of the Corporation's conduct they have suffered loss and damage for which the Corporation and the State of New South Wales (of which the Department is an emanation) should be held liable. The applicants' claims initially included alleged contraventions of the Trade Practices Act 1974 (Cth). In Hine v New South Wales Land and Housing Corporation [2008] FCA 62 Graham J dismissed a notice of motion seeking to strike out the proceeding on the ground of lack of federal jurisdiction. Accordingly, the proceeding remains for determination in this Court despite the fact that the applicants' present claim does not include any federal element. On 14 April 2009 Graham J ordered that the question of liability be decided separately from and before the question of quantum of damage in the proceeding in accordance with Order 29 rule 2(a) of the Federal Court Rules . These reasons, accordingly, deal with the question of liability only. The evidence ranged widely. I propose to deal with the facts in the context of the four causes of action (misleading and deceptive conduct, breach of a duty of care, negligent misstatement, and procuring breach of contract). Before doing so I should note two matters. First, the Corporation's prohibition on its contractors using CPR Property as a subcontractor arose out of allegations against one of the Department's employees. The evidence in this proceeding thus includes references to unproven allegations against this employee. The employee is not a party to this proceeding. He did not give evidence in this proceeding. None of the allegations to which the evidence refers have been tested in this proceeding. For these reasons I consider that it would be unfair and unjust to name the employee in my reasons and, instead, I will refer to the employee as AB. Further, I should record that I cannot and do not make any adverse finding of any kind in respect of AB. Insofar as the allegations about AB involved Mr Hine and CPR Property, Mr Hine has provided evidence in this proceeding both denying the allegations and explaining the lack of substance in the suggestion that he was involved in any form of impropriety in connection with AB. The respondents did not challenge any aspect of Mr Hine's testimony in this regard. Insofar as the allegations about AB involved another company called Willowdene Constructions Pty Limited ( Willowdene ), an investigation by Ernst & Young completed after the main events in issue in this proceeding cleared Willowdene of any involvement in any wrongdoing. When reading my reasons for decision, which necessarily identify these allegations by reference to the circumstances at the time, these important matters about the untested and/or unfounded nature of the allegations must be kept in mind. Second, the relationship between the Corporation, the Department and the State of New South Wales needs some further explanation. The Department is an agency of the State of New South Wales created by administrative arrangement of the New South Wales Government. The Department has no legal identity separate from that of the State. The State of NSW can be sued for the actions of its agents under s 5 of the Crown Proceedings Act 1988 (NSW). From 1 July 2001 the Corporation was constituted as a statutory corporation under s 6(1) of the Housing Act 2001 (NSW). The Corporation thus has separate legal identity and can sue and be sued in its own name (s 50 of the Interpretation Act 1987 (NSW)). Under s 6(7) of the Housing Act the Corporation may exercise any of its functions, and may otherwise act, in the name of the Department. Under s 6(8) the Corporation and the Department are, to the maximum extent possible, to act in a complementary manner, so as to achieve a unified administration of the Housing Act . The Corporation cannot employ any staff (s 7(3)). The Department employs the staff. The employees act in the name of the Department and the Corporation as required. The Director-General of the Department manages the affairs of the Corporation and any "act, matter or thing done in the name of, or on behalf of, the Corporation by the Director-General, or with the authority of the Director-General, is taken to have been done by the Corporation" (s 6(3)). Most of the references in the evidence are to the Department although the contractual arrangements are between the Corporation and other entities. Given the statutory context, the hearing was run on the basis that conduct of the Corporation may be treated as conduct of the Department and conduct of the Department is conduct for which the State of New South Wales is liable. In these reasons I mostly refer to the Department except where dealing with the specific terms of the contracts between the Corporation and others (which nevertheless vest rights in representatives of the Department). These contracts were in substantially the same terms. I refer to these contracts as the Willowdene head contract and Transfield head contract respectively. When referring to both contracts I refer to them as the head contracts. The head contracts relate to the provision of maintenance services in various areas in which the Department owns properties. The head contracts provide for the contractors to carry out works under work orders at certain scheduled rates. The head contracts were to expire on 30 June 2004 with a capacity for extension by the Department until 30 June 2006. In accordance with cl 1 of the general conditions of contract (which formed part of the head contracts) the Director-General of the Department is the Principal. The Principal's Representative is a nominated officer of the Department, Dennis Schultz. The head contracts are described as schedule of rates contracts (cl 2 of the general conditions of contract). Specifically, the Principal does not guarantee the contractor any particular level of work and does not give the contractor any exclusive right to the work in the areas covered by it. Clause 6 of the general conditions of contract precludes the contractor from subcontracting the works unless the contractor has obtained the written approval of the Principal's Representative to do so, such approval not to be unreasonably withheld. Clause 14 of the general conditions of contract provides that if the head contract enables the Principal's Representative to give a direction to the contractor, the contractor must comply with that direction. Clause 16 of the general conditions of contract is such a provision. The contractor is required to acquaint all subcontractors with this requirement. Each of the contractors under the head contracts, Willowdene and Transfield, entered into a subcontract with CPR Property. The Willowdene subcontract relates to carpentry and cleaning and specifies a schedule of rates for each work type. It specifies a completion date of 30 June 2004 but not the commencement date. I infer that the agreement commenced on or about the same time as the head contracts (3 June 2002). The Willowdene subcontract is not signed but Mr Hine acknowledged that he worked in accordance with the rates specified in it. The Willowdene subcontract contains a provision that all communications arising out of the head contract will be between the Principal's Representative and the contractor and should a subcontractor require information it will be supplied only through the contractor. The Transfield subcontract is dated on or about 6 August 2002, and was renewed on 9 April 2003. Amongst other things the Transfield subcontract requires CPR Property to provide the services in accordance with various documents (including the work requirements forming part of the head contract) copies of which were said to be "available on request". Mr Hine and others attended a "contract specific induction" conducted by Transfield. On 24 March 2004 the Corporation issued to Willowdene a direction under cl 16 of the general conditions of contract forming part of the Willowdene head contract. According to a report signed by Mr Schultz on 26 March 2004, on 24 March 2004 Mr Schultz advised Transfield's contract manager that Transfield was "not to use the services of CPR Property until further notice". The respondents acknowledged that this communication was also the giving of a direction prohibiting Transfield from using CPR Property as a subcontractor under cl 16 of the general conditions of contract forming part of the Transfield head contract. Willowdene and Transfield immediately ceased to use CPR Property under the head contracts as a subcontractor for work required to be carried out on the Department's properties. CPR Property has not worked on any property owned by the Department since that date. A prohibition, submitted the applicants, is inherently permanent. The directions given thus conveyed a representation that CPR Property was unsuitable such as to warrant permanent preclusion from working as a subcontractor for the Department. According to the applicants, however, this representation was not true. It did not reflect Mr Schultz's actual state of mind at the time the directions were given. The applicants submitted that the evidence supported a finding that Mr Schultz had not, at any time, reached a view that CPR Property ought to be prohibited (permanently) from being a subcontractor. No one expressed any such opinion at the meetings Mr Schultz attended on 23 February and 18 and 19 March 2004. All that officers of the Department intended was that Willowdene and Transfield not use CPR Property as a subcontractor pending the results of the investigation into AB. A statement purporting to reflect an opinion will be misleading if it does not reflect the actual state of mind of the person in question ( James v ANZ Banking Group Limited (1986) 64 ALR 347 at 372: "[a] statement involving the state of mind of the maker of the statement, e.g. promises, predictions and opinions, ordinarily conveys the meaning that the maker of the statement had a particular state of mind when the statement was made and that there was basis for that state of mind. If the meaning contained in or conveyed by the statement is false in that or any other respect, there will have been [misleading and deceptive conduct]". See also Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88). The applicants' alternative case is that the directions given pursuant to cl 16 also conveyed a representation that the Principal's Representative had a reasonable basis for the opinion that CPR Property was unsuitable such as to warrant CPR Property being prohibited from carrying out work on the Department's properties. According to the applicants there was no reasonable basis for the opinion and thus the directions to Willowdene and Transfield (written and oral respectively) also were misleading and deceptive on this basis. The respondents submitted that cl 16 of the head contracts permitted the Principal's Representative to form the decision in any way he liked, provided the opinion is "subjectively (that is honestly) reasonable". Reasonableness must be informed by the objects of the Corporation, particularly as specified in ss 5 and 12 of the Housing Act . The purpose of cl 16 should be understood as vesting in the Corporation a wide discretion to exclude from the State's properties any subcontractor that the Principal's Representative honestly regarded as unsuitable. The directions say what they say. They do not mention that the prohibition has any temporal dimension. The directions, the respondents submitted, accurately reflected the fact that the Principal's Representative reasonably regarded CPR Property as unsuitable to perform the work because of its involvement in a pending investigation about CPR Property's association with a Departmental employee (AB). At the time the directions were given, being the relevant time for assessment of the facts in issue ( City of Botany Bay Council v Jazabas Pty Limited [2002] ANZ ConvR 300; [2001] NSWCA 94 at [83] and McGrath and Honey as Joint Liquidators of Pan Pharmaceuticals Ltd v Australian Naturalcare Products Pty Ltd (2008) 165 FCR 230 ; [2008] FCAFC 2 at [198] ), there were reasonable (indeed, ample) grounds supporting this state of mind. The mere fact that an opinion may later turn out to be wrong does not prove that it was misleading or deceptive when conveyed ( Reiffel v ACN 075 839 226 Ltd (2003) 132 FCR 437 ; [2003] FCA 194 at [37]). The respondents also submitted that Willowdene and Transfield took action to prohibit CPR Property from working as a subcontractor because of mere receipt of the directions and not because of any representation conveyed by the directions. The applicants were not recipients of the directions and were not misled. Hence, both aspects of the applicants' misleading and deceptive conduct case must fail. Under s 4 a business includes a business not carried on for profit, and a trade or profession. The proscription in s 42 applies to a person in trade or commerce, engaging in conduct that is misleading or deceptive or is likely to mislead or deceive. Section 4 defines "trade or commerce" to include any business or professional activity. The respondents accepted that the conduct in and in connection with the issuing of the directions to Willowdene and Transfield was done as part of carrying on a business and was in trade or commerce within the meaning of these provisions. I accept that the provisions of the Housing Act are relevant to an assessment of the conduct of the Corporation and the Department, as is their status as public authorities. The respondents' submissions in this regard were difficult to follow. Their written submissions appeared to assert that cl 16 required nothing more than an honestly held view. Their oral submissions, however, appeared to accept that cl 16 involved some objective element by reason of the word "reasonably" in the phrase "reasonably regards the ...subcontractor as incompetent, negligent or otherwise unsuitable". Irrespective of this I am satisfied that cl 16 requires more than an honest opinion before the right to issue a direction arises. A person's view is not reasonable merely because it is honestly held. For example, an honest but capricious and arbitrary view is not a reasonable view. A person reasonably regards some matter to be so where the opinion or view is reached by a process of reason. The view must thus be rational having regard to the circumstances known to the person at the time. Clause 16, accordingly, does not impose a particularly onerous standard. By that provision the Corporation covenanted with the contractor to prohibit the use of certain subcontractors only if the Principal's Representative reasonably regarded the subcontractors as unsuitable on one or more of the nominated grounds. The Corporation did not contract that this power would be exercised only if the Department had completed an investigation either at all or to a particular standard. It did not contract that the power would be exercised only if the Principal's Representative reached the relevant state of mind by reference to any particular standard of proof. An assessment of rationality (or reasonableness) must be undertaken recognising the statutory imperatives under which the Corporation and the Department operate and the commercial realities in which they exercise their functions. The evidence discloses that the Department owns thousands of properties throughout NSW (about 7000 in the western area of metropolitan Sydney alone). The properties are mostly tenanted to people on low incomes and various forms of income support. The properties include single cottages, residential flat buildings and aged care facilities. Some tenants look after their properties with the utmost care. Some do not. The properties frequently require maintenance, repairs and cleaning both when tenanted and between tenancies. This includes rubbish removal, mowing and lawn maintenance, fencing maintenance, repainting, recarpeting, replacement of fixtures and fittings, as well as household cleaning generally. Before June 2002 officers of the Department dealt directly with a wide variety of trade contractors. Mr Hine was one of those trade contractors. Before May 2002 he operated as a sole trader under the registered business name CPR Property Maintenance. Although there was some debate about exactly when he started to work on the Department's properties, I am satisfied that Mr Hine started doing lawn mowing for the Department in or about 1989 (when the business name CPR Property Maintenance was registered). At some time thereafter (but no later than the late 1990s) Mr Hine began doing cleaning and other small maintenance jobs on the Department's properties as well. Mr Hine and the Department entered into contracts for the carrying out of this work on a two to three year basis. One contract (which is in evidence) was dated 29 February 2000. This contract was entered into after a tender process. The tender documents show that Mr Hine sought work in the Western Sydney area as a sole trader operating under the business name CPR Property Maintenance. On 3 February 2000 the Department identified Mr Hine as a contractor who had been "vacant cleaning for many years with the Department, and at the present time is working for team 3, who appear to be more than happy with CPR as a vacant cleaning contractor". According to another Departmental document of about the same date Mr Hine "has worked only for the Department over the last five years" and was the subject of "very good feedback" from Departmental officers who were Mr Hine's referees. The contract of 29 February 2000 between the Corporation (then constituted under the Housing Act 1985 (NSW)) and Mr Hine trading as CPR Property Maintenance was for the cleaning of vacant dwellings in an area known as WS07. Under the contract the Department was not obliged to use Mr Hine as a contractor, the contract being a standing offer to carry out work at agreed rates as and when required (cl 8). The contract was for a period of two years commencing 1 March 2000 (cl 10). During the term of this contract the Department decided to streamline its procedures by minimising the number of contractors with which its officers had to deal. To achieve this objective the Department decided that it would appoint contractors for each area. It would enter into a contract with those contractors only. The contractors would be responsible for carrying out the works or for arranging subcontractors to carry out the works. The Department's officers would then have to deal with the contractors only. Mr Hine became a subcontractor to one of the early contractors used by the Department, Haden FM Pty Ltd, in the period before the execution of the head contracts with Willowdene and Transfield (which commenced on 3 June 2002). As part of this streamlining process Mr Hine was advised (perhaps by a Transfield or Willowdene representative) that he could not be a subcontractor to the Department unless he operated as a body corporate. As a result of this advice CPR Property Pty Ltd was incorporated on 2 May 2002. Given the diverse nature of the works required under the head contracts I infer that the Department and Corporation must have anticipated the almost routine use of subcontractors by the contractors. I also infer that the Department and Corporation must have known that many of the trade contractors with whom it used to contract directly would continue to work on its properties as subcontractors. Before finding certain other facts it is convenient to answer another question --- what were the representations conveyed by the directions? The written direction to Willowdene is clear. It is expressed to be in accordance with cl 16 of the general conditions of contract, the terms of which were known to Willowdene. It is from the Principal's Representative (even though the power under cl 16 is vested in the Principal based on the state of mind of the Principal's Representative). It prohibits Willowdene from using CPR Property in the performance of the works on the basis that the Principal's Representative reasonably regards CPR Property as unsuitable on account of its involvement in a pending investigation by the Department into its (that is, CPR Property's) association with a Departmental employee (AB) and certain allegations of misconduct arising therefrom (that is, from CPR Property's association with AB). (2) The view of the Principal's Representative was reasonable in all of the circumstances in the sense that it had been reached by a rational process and was founded on a rational basis. (3) The rational basis was that the Department was undertaking an investigation into CPR Property's association with a Departmental employee and allegations of misconduct by the employee arising from that association. (4) The Department had sufficient cogent information indicating the existence of an association (that is, by necessary implication, an improper association) between CPR Property and the unnamed Departmental employee such as to warrant the Principal's Representative prohibiting CPR Property from working on the Department's properties. (5) The Department had sufficient cogent information indicating that the allegations of misconduct against its employee by reason of the association between CPR Property and the employee warranted the Principal's Representative prohibiting CPR Property from working on the Department's properties. The oral direction to Transfield involves some disputed evidence. In [24] above I referred to a report signed by Mr Schultz on 26 March 2004 recording that Mr Schultz advised Transfield's contract manager that "Transfield were not to use the services of CPR Property until further notice". In his affidavit and oral evidence Mr Schultz (who had not checked all of the Department's records before preparing his affidavit) said that he informed Transfield's contract manager on 25 March 2004 about the investigation and asked whether Transfield was using CPR Property. Transfield's contract manager said Transfield had not been using the services of CPR Property very much in the last five or six weeks and would not use them. The report signed by Mr Schultz on 26 March 2004 (two days after the events in question) is likely to be more accurate than his recollection some five years later. The report says that the call by Mr Schultz was made on 24 March 2004, the same day as the giving of the written direction to Willowdene. This is more plausible than Mr Schultz's version in his affidavit of having made the call on 25 March 2004. I am also satisfied that the version of the conversation in the report, in which Mr Schultz directed Transfield to the effect that CPR Property were prohibited from doing works on the Department's properties, is more plausible than the version in his affidavit. I consider it likely that Mr Schultz made the call to Transfield with the benefit of the written direction to Willowdene either before him or at the forefront of his mind. I infer that Mr Schultz would have been keen to communicate to Transfield the same direction as had been communicated to Willowdene, albeit one was in writing and the other oral. Accordingly, I infer that Mr Schultz's discussion with the Transfield contract manager on 24 March 2004 conveyed the same or substantially the same information, and thus the same representations, as the written direction to Willowdene of the same date. Were those representations misleading or deceptive or likely to mislead or deceive? Two aspects of the respondents' submissions in answer to this claim may be dismissed immediately. First, the fact that Willowdene and Transfield were bound to comply with the directions pursuant to cl 14 of the general conditions of contract does not mean that the only representation conveyed was that the direction was a direction under cl 16 and binding for the purpose of cl 14. Willowdene and Transfield were only bound to comply with the direction under cl 14 if the direction was a direction that the head contract enabled the Principal's Representative to give. Clause 16 only permitted the direction to be given in the circumstances specified in that clause. The directions given thus conveyed the representations. Willowdene and Transfield in fact immediately ceased to use CPR Property as a subcontractor on the Department's properties. The representations conveyed caused Willowdene and Transfield to so cease using CPR Property as a subcontractor to perform maintenance on the Department's properties. Second, the fact that the representations were made to Willowdene and Transfield rather than the applicants is beside the point. A person may suffer loss and damage "by conduct of another person that is in contravention of" s 42 of the Fair Trading Act so as to engage a right to claim damages under s 68 of that Act whether the conduct is directed towards them or another person. As set out in [1.82.17] and [1.82.18] of Russell V Miller. Miller's Annotated Trade Practices Act : Australian Competition and Consumer Law (30 th ed). Thomson Reuters. All that is necessary is a sufficient and direct link between the loss or damage alleged to have been suffered and the misleading or deceptive conduct: McCarthy v McIntyre [1999] FCA 784 ; Finishing Services Pty Ltd v Lactos Fresh Pty Ltd [2006] FCAFC 177 ; Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526 ; 109 ALR 638 ; ATPR 41-186; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494 ; 158 ALR 333 ; 73 ALJR 12 ; ASAL 55-014; ATPR 41-665 at 359. For example, where the misleading conduct involves passing off, the public may be misled thereby increasing the respondent's sales at the expense of the applicant. In these circumstances the claimant may suffer loss or damage even though the claimant may never have been misled: see Janssen-Cilag Pty Ltd v Pfizer Pty Ltd [1992] FCA 437 ; (1992) 37 FCR 526 ; 109 ALR 638 ; ATPR 41-186; Hayes v Top Slice Deli Pty Ltd [1995] ATPR (Digest) 53 ,149 (46-147); Hill v Tooth & Co Ltd (1998) ATPR 41-649. This is apparent from reading [155] of the NSW Court of Appeal's reasons in context. Stockland , like Janssen-Cilag , was not a case where the plaintiff claimed damage caused by entering into a transaction induced by misleading conduct. In both cases the misleading conduct had caused others to act to the direct prejudice of the plaintiff. That is to say, the chain of causation was as follows: firstly, misleading conduct by the defendant; secondly, an innocent party is induced by the misleading conduct to act in some way; thirdly, the innocent party's act, by its very nature, causes the plaintiff loss. On this basis, no act of the plaintiff contributes to the loss. The chain of causation is complete without there needing to be any act or omission on the part of the plaintiff. The difference lies in the fact that in the first category of case no conduct on the part of the plaintiff forms a link in the causation chain. In the second category, the inducement of the plaintiff and his or her act or omission causing loss is an essential part of the chain. Without such inducement and a consequential act or omission on the part of the plaintiff there is indeed no linking chain between the misleading conduct and the plaintiff's loss. On this basis, no act of the plaintiff contributes to the loss". The respondents' primary answers to this claim --- that Mr Schultz held the views expressed in the directions at the time they were given and that those views were reasonably held in all of the circumstances at that time --- requires some further findings of fact and an assessment of the competing submissions in light of those findings. I turn now to those further factual findings. The concern about the Department's employee, AB, appears to have started with a complaint in April 2003 by another (anonymous) employee. The anonymous complainant alleged that AB was operating inappropriately by directly arranging work with a subcontractor (CPR Property) before raising a work order. This work was described as "untraceable". The Department's Business Assurance Unit contacted the Independent Commission Against Corruption ( ICAC ) about the allegations in the same month, April 2003. By the stage of contact with ICAC, the Department's Business Assurance Unit had received other information from other employees alleging that AB "over-serviced" properties (that is, arranged for work to be done that was not required). Mark Lenic, the Department's manager of the area in which AB worked, prepared a memorandum dated 20 May 2003 attaching the observations of various employees about AB's work practices and an analysis of the works orders AB had raised. By this stage a former employee of Willowdene (at this time mistakenly thought by Departmental officers to be a former employee of CPR Property) had also been in contact with a Department officer making various allegations about AB's work practices and AB's relationship with CPR Property. Mr Lenic thus treated this information as "first hand knowledge" of some inappropriate conduct (which it was not). Mr Lenic considered it clear from the material as a whole that "some wrongdoing" had occurred. He referred to AB's Departmental mobile phone records showing a large number of calls from AB to Mr Hine which was contrary to the Department's code of conduct requiring communications to be with contractors only. Mr Lenic recommended a full investigation by the Business Assurance Unit. Under s 11(2) of the Independent Commission Against Corruption Act 1988 (NSW) the principal officer of a public authority must report to ICAC "any matter that the person suspects on reasonable grounds concerns or may concern corrupt conduct". By 26 June 2003 the Department's Director-General, its principal officer, had written to ICAC in accordance with s 11 about allegations that AB may be operating inappropriately by raising works orders in favour of CPR Property. This report attached Mr Lenic's memorandum. The Director-General requested that ICAC investigate the matter. On 28 August 2003 the Director-General again wrote to ICAC informing it of a change of AB's role within the Department and that AB's works orders would be subject to a review by another employee. ICAC also received reports and other material as brought into existence within the Department during ICAC's investigation. This included reports by Noel Davidson, a Departmental employee, dated September 2003 and 20 October 2003. In the former Mr Davidson tabulated the differences between original estimates and the final costs of works required by AB. In the latter Mr Davidson compared his scoping of works required for certain properties to that of AB and identified a number of instances where AB's recommended works exceeded those Mr Davidson considered necessary. The material also included a report of Brian Gore, a Departmental employee, dated 27 October 2003. Like Mr Davidson, Mr Gore identified irregularities in AB's works orders such as including items under the wrong codes, apparently excessive numbers of certain items, use of wrong pay rates, and incorrect allocations of charges between the Department and its tenants. The anomalies and irregularities observed by the Department were a cause for concern because they showed a pattern of costing the Department more money than the analysing officers considered necessary or reasonable. As part of its investigation ICAC obtained documents from the Department and conducted interviews with or took statements from relevant employees and other persons. ICAC interviewed Mr Lenic and Mr Davidson, amongst others. ICAC also took a statement from Mr Gore. In addition, ICAC conducted various covert surveillance operations. ICAC's investigation concluded on 5 February 2004. A full audit of [AB's] finances has not revealed any unexplained income or identified that [AB] is living beyond his means. The Commission has established that [AB] has a non-disclosed conflict of interest in that he has been working with/for CPR. [AB's] exact role with CPR was not established, however, he was observed assisting in moving building materials at a DoH site with other CPR workers. [AB's] telephone contact with CPR principle Mr. Robert Hind (sic) appears to be in direct contravention of departmental policy. The Commission identified a number of occasions where [AB] has taken a departmental vehicle home for private use without authority. Therefore, the matter is referred to the DoH for appropriate action. Subsequently, the Department received materials that ICAC had gathered in its investigation. The Department then had to deal with the issue of disciplinary action raised in the last paragraph of ICAC's letter. Mrs Trudgett gave evidence in the proceeding. Insofar as Mrs Trudgett's evidence indicated that the contents of that meeting were inconsistent with ICAC's written findings, the contents are hearsay, speculative, and inconsistent with the inference I draw that ICAC's written report fully and frankly sets out the results of its investigations. Insofar as ICAC's findings involved Mr Hine and CPR Property it must also be noted that Mr Hine, in this proceeding, has given unchallenged evidence about the telephone calls from AB to him, the single day on which AB worked with CPR Property for work experience and AB's stepson working as an apprentice for CPR Property through a placement from the Housing Industry Association. On 23 February 2004 officers of the Department, including Mrs Trudgett and Mr Schultz, attended a meeting. At that stage Mrs Trudgett did not understand how AB was allegedly issuing "direct" works orders to CPR Property. In fact, as is apparent from the evidence as a whole, this never occurred. The attendees of the meeting also decided to retain Ernst & Young to provide advice before the Willowdene head contract was renewed. The issue of how AB directly raised work orders was still on the table at a meeting that Mrs Trudgett (but not Mr Schultz) attended with Mr Lenic, Ray Hart and Leonie King (all Departmental officers) on 25 February 2004. One further report was created within the Department after ICAC referred the matter back to the Department. This is a report by Mr Gore dated 8 March 2004. The report dealt with inspections of sites where Mr Gore considered the work orders showed excessive items. It is proposed that 10 orders of this type be audited under the above clause and all information and communication between Willowdene and their sub contractor be claimed and fully audited. If there is a difference and Willowdene paid the subcontractor for 6 trees and claimed 9 from the Department it becomes clear that the Contractor has had a "cut of the action". Mrs Trudgett attended another meeting of Departmental officers (not including Mr Schultz) on 9 March 2004 referring to steps to gather evidence about the matter. On 10 March 2004 the Department engaged Ernst & Young to report on AB in terms of how AB carried out his work, AB's relationship with Willowdene and AB's relationship with CPR Property as a subcontractor. The letter said the Department anticipated that this matter would be the subject of future legal proceedings against either or all of AB, Willowdene and CPR Property. Wayne Gilbert, a representative of Ernst & Young, attended another meeting of Departmental officers (not including Mr Schultz) on 10 March 2004 in which the Department identified its concerns about AB, Willowdene and CPR Property. Departmental officers (but not Mr Schultz) met again on 12 March 2004. On 15 March 2004 Mr Gilbert of Ernst & Young gave officers of the Department a briefing on Ernst & Young's investigation. Mr Schultz was not at this briefing. On the same day, 15 March 2004, the Department's internal solicitor, Antonino Calcopietro, sent an email which Mrs Trudgett read stating, amongst other things, that there appeared to be one works order for $80,000 warranting consideration. This is a reference to a property known as 171 Stephen Street, Blacktown ( the Stephen Street property ). Mr Calcopietro saw three possibilities: - (i) Willowdene did not know what was happening, (ii) Willowdene was an active participant in AB's conduct, or (iii) Willowdene was an inactive participant in AB's conduct. Mr Calcopietro's email did not refer to CPR Property. On 18 March 2004 Mrs Trudgett, Mr Schultz and Mr Gilbert met, along with other officers of the Department. over no work by CPR? --- Yes, forever prohibited. Forever prohibited is not something that was ever intended. It was intended for the course of the investigation. You agree with that, don't you? --- Yes, I agree with that. On the same day, 18 March 2004, Ernst & Young forwarded a draft letter of engagement to the Department. The nature of AB's relationship with CPR and Willowdene. Whether AB has breached DOH policies, procedures and the Code of Conduct. Whether CPR have engaged in fraudulent or inappropriate conduct relating to work carried out on behalf of the Department of Housing. The nature of the relationship between CPR and Willowdene to determine if Willowdene have fulfilled their contractual obligations with respect to the DoH and sub-contractor. On 19 March 2004 a meeting was convened so that officers of the Department could brief and make a recommendation to the Director-General. Mrs Trudgett and Mr Schultz, amongst other Departmental officers, attended this meeting, as did Mr Gilbert of Ernst & Young. The meeting consisted of presentations to the Director-General by Mr Gilbert and Mary Jacobson, a Departmental officer. Mrs Trudgett and Mr Schultz did not address the meeting. I infer that the recommendation put to the Director-General was consistent with that resolved by the attendees at the meeting on 18 March 2004. Mrs Trudgett wrote a file note about this meeting recording that Ernst & Young's audit of Willowdene was scheduled to commence on 24 March 2004. Mrs Trudgett also recorded the Director-General's decision that "CPR gone". Mrs Trudgett recalled that the Director-General decided that Willowdene should be instructed not to use CPR Property as a subcontractor. Mrs Trudgett agreed that this decision by the Director-General was that Willowdene should be prohibited from using CPR Property as a subcontractor indefinitely and not merely pending the completion of the investigation. Nonetheless, he indicated right from the outset (that is, his first formal briefing) that CPR were not to be involved with the works in Western Sydney. The retainer was sent by letter dated 23 March 2004 and requested the report by 21 April 2004. On the same day, 23 March 2004, the Director-General issued a letter to AB initiating an investigation under s 45(2)(a) of the Public Sector Employment and Management Act 2002 (NSW). The same letter suspended AB from duty on full pay pending the outcome of the investigation under s 49(1)(a) of that Act. In accordance with the Director-General's decision on 19 March 2004, the Department's legal branch prepared the direction to Willowdene under cl 16 of the head contract and presented it to Mr Schultz for signature. One copy of the written direction has been annotated in handwriting, I infer, before issue of the direction. The oral direction to Transfield was given on the same day. As noted, Willowdene and Transfield immediately ceased to use the services of CPR Property. Ernst & Young provided its draft report on 30 April 2004. Ernst & Young did not speak to Mr Hine or any representative of CPR Property in carrying out this investigation. Ernst & Young found "no overt evidence of fraud or corruption by Willowdene". Insofar as their report dealt with CPR Property, Ernst & Young said there was evidence that CPR Property was Willowdene's subcontractor (a matter never in doubt), Willowdene issued works orders to CPR Property (also never in doubt), CPR Property carried out the works in accordance with the works orders and approved variations (again, not in doubt) and Willowdene paid CPR in accordance with the works orders and approved variations (not in doubt). The Department thereafter renewed Willowdene as a contractor for a further period of two years. Ernst & Young's final report, issued on 15 July 2004, added nothing material to the draft report. Mr Fordham provided his report on 13 May 2004 following a series of interviews, including with AB (but not Mr Hine or any representative of CPR Property). Mr Fordham concluded that the evidence supported a finding that AB misappropriated Departmental resources by raising works orders that were exaggerated in terms of works of that nature or extent not being required. Mr Fordham, however, found no evidence of any advantage to AB by reason of this conduct. Mr Fordham's references to Willowdene and CPR Property disclose that his investigation did not extend to their role or any knowledge they might or might not have had about AB's conduct. The Department terminated AB's employment on 6 April 2005. The Department withdrew the direction to Willowdene prohibiting it from using CPR Property as a subcontractor in March 2006. In terms of his state of mind at the time the directions were given to Willowdene and Transfield, Mr Schultz agreed that he had not carried out any independent investigations either in his role as the Principal's Representative under the head contracts or otherwise. Mr Schultz's opinions were based on what he heard at the meetings he attended (23 February and 18 March 2004, as well as the briefing of the Director-General on 19 March 2004). --- Yes. Correct? --- Yes. I don't believe that to be the case. --- No, I don't believe they were to be prohibited for all of time. So I just may say that --- leaving aside the Director-General meeting, because we know there was a presentation to the Director-General and he made his decision, but at the other meetings where you listened to investigators, no one expressed in those meetings the view that CPR were so unsuitable that it would be prohibited as a subcontractor indefinitely. Do you agree? --- That's correct. --- Yes. Neither Ernst & Young nor Mr Fordham had completed their investigations before the issue of the directions to Willowdene and Transfield prohibiting them from using CPR Property as a subcontractor on the Department's properties. Mrs Trudgett gave evidence repeating her views that the Department acted appropriately at all times. Mrs Trudgett stressed that the Department is a public authority. It had evidence that its funds were being misappropriated. The evidence always referred to three people --- AB, Willowdene and CPR Property. The Department had to act. The Department had no contractual relationship with CPR Property but did with Willowdene and employed AB. The applicants criticised Mrs Trudgett's evidence as partisan. Mrs Trudgett's evidence disclosed that she is a highly conscientious and dedicated officer of the Department. It is not difficult to understand why a person with these characteristics will tend to appear anxious, even eager, to defend their Department when giving evidence. Nevertheless, I accept that Mrs Trudgett's evidence exhibited these characteristics and must be weighed accordingly. Putting aside Mrs Trudgett's characterisation that the material available to the Department was "overwhelming" by the time the directions were issued on 24 March 2004, it is apparent the material consisted of: - (i) the fact that CPR Property was a subcontractor to Willowdene and obtained works orders from it in the area controlled by AB, (ii) analyses by various Departmental officers of AB's works orders which had led Departmental officers to the conclusion that there were anomalies in AB's scoping of works and works orders which showed a distinct pattern or tendency in one direction (that is, to increase the costs paid by the Department over and above that which the officers considered necessary or reasonable), (iii) the telephone calls from AB to Mr Hine showing a total of about 350 calls over a period of about 9 months (compared, for example, to 89 calls made to the representative of Willowdene in the same period), (iv) video surveillance showing AB working on a site with Mr Hine on one occasion, and (v) AB's stepson having a place as an apprentice with CPR Property through a scheme run through the Housing Industry Association. It must also be acknowledged that, at the same time that this material was available to the Department, the Department knew that ICAC (on the basis of much the same material) had found insufficient evidence of corrupt or criminal conduct to warrant continuing its investigation. It knew as well that Ernst & Young were investigating the allegations, including the allegation "whether CPR [Property] have (sic) engaged in fraudulent or inappropriate conduct relating to work carried out on behalf of the Department of Housing". It knew that Mr Fordham was investigating all of the allegations against AB. It knew that it had not obtained the results of these investigations. Whether the directions given on 24 March 2004 were misleading and deceptive in either of the two ways which the applicants identified falls for determination in this factual context. The applicants' primary case is that the directions did not reflect the actual state of mind of Mr Schultz as the Principal's Representative (namely, that CPR Property was an unsuitable subcontractor "to continue with the organisation whilst the investigation was taking place"). According to this submission the directions issued under cl 16 involved a prohibition and thus conveyed a representation that the Principal's Representative regarded CPR Property as unsuitable so as to warrant permanent preclusion from working as a subcontractor on the Department's properties. The applicants' alternative case is that the directions misleadingly conveyed that there was a reasonable basis for the opinion of the Principal's Representative as to CPR Property's unsuitability (that is, unsuitable so as to warrant permanent preclusion from working as a subcontractor on the Department's properties) when there was no such reasonable basis. Despite the persuasive way in which the submissions for the applicants were put, I am unable to accept them. The temporal distinction on which the applicants' primary claim relies --- between unsuitability so as to warrant a prohibition said to be indefinite or permanent in character and unsuitability only so as to warrant a suspension pending the completion of the investigations --- is not apparent from the terms of either cl 16 or the directions. It is true that both the clause and the directions involve a prohibition. A prohibition in this context is simply a ban for so long as the direction remains in force, however long that might be. A direction to Willowdene and Transfield stating that they are "prohibited from" using a particular subcontractor thus would be understood as simply forbidding them to use that subcontractor for so long as the direction itself remains in force. The difference between an intended permanent or temporary ban would not have occurred to the intended recipients of the directions or, for that matter, any other recipient. As to cl 16, the use of the word "prohibit" does not limit the Department's power to cases where the Principal's Representative reasonably regarded the subcontractor as incompetent, negligent or otherwise unsuitable so as to warrant a permanent ban. As to the directions, a reasonable contractor in the position of Willowdene and Transfield at the time would not understand the direction to involve any temporal component other than that the prohibition would remain in place for so long as the Department said. Hence, I do not accept that the word "prohibit" necessarily conveys a representation that CPR Property was unsuitable so as to warrant permanent preclusion from working on Departmental properties. The applicants' primary case, in my view, depends on a false dichotomy. Once the dichotomy between a permanent and temporary ban is put to one side, it is apparent that the direction accurately conveyed the state of mind of Mr Schultz, the Principal's Representative. Mr Schultz did consider CPR Property unsuitable to be a subcontractor working on the Department's properties. The fact that he did so with respect to the duration of the investigation is immaterial. The direction did not convey any representation about the duration of the prohibition. It also must be remembered that the issue in this case is not the validity of the directions. The Director-General was empowered to give the directions on the basis of Mr Schultz's state of mind. In fact, Mr Schultz gave the directions as a consequence of the decision of the Director-General on 19 March 2004. Nevertheless, the recipient would have recognised that the Principal's Representative (Mr Schultz) was nothing more than an agent for the Principal (the Director-General). Mr Schultz was an employee of the Department and, I infer, subject to the control and direction of the Director-General. The evidence supports the inference that, irrespective of Mr Schultz's state of mind, the Director-General was of the view that CPR Property should no longer be permitted to do work for the Department. The directions thus accurately conveyed the decision of the Director-General at the meeting on 19 March 2004 and, thereby, the Department's corporate position from that date. Once that is accepted, the artificiality of characterising the directions as misleading and deceptive in the sense the applicants claim becomes apparent. Further, it is also apparent that the applicants' primary submissions about the directions being misleading and deceptive are based on a suppressed premise. The submissions assume that once the investigation was complete the directions would be withdrawn. The basis for this assumption is not apparent. It is one thing for Mr Hine to have given unchallenged evidence in this proceeding. It is another to infer that, if this evidence had been given to the Department in 2004, the Department would have accepted it and considered Mr Hine to have been exonerated and withdrawn the directions in consequence. For example, AB put many of the same matters to Mr Fordham yet he found some of the allegations proved by reference to other evidence. Moreover, despite AB's evidence to much the same effect as that of Mr Hine in this proceeding, the Department terminated AB's employment following the investigation. The alternative submission is founded on the premise that there was no basis on which Mr Schultz could have reasonably regarded CPR Property as unsuitable in the required sense pending the completion of the investigation. According to this submission, the investigation included the allegations against CPR Property. The findings of the investigation (including by Ernst & Young and Mr Fordham) were unavailable. Given the lack of result from the earlier ICAC investigation, no reasonable conclusion could have been reached by Mr Schultz as to CPR Property being unsuitable within the meaning of cl 16. As to the matters which did exist, AB made many telephone calls to Willowdene in the same period. AB only worked on a site with Mr Hine on one occasion for work experience. The main anomaly with a works order noted, relating to the Stephen Street property, involved approved variations through work orders raised by another officer and not AB. Further, the amount charged by CPR Property was well below the amount paid to Willowdene. Further, according to the submissions for the applicants, officers of the Department disclosed an early inclination to condemn Mr Hine and CPR Property and an ongoing eagerness to draw adverse conclusions against them. The minds of the officers, said the applicants, were closed to the very real prospect that the applicants had no involvement at all in any wrongdoing by AB. The officers were willing to condemn the applicants because of the lack of any perceived legal obligation owed to them by the Department, in contrast to the Department's contractual relationship with Willowdene and employment relationship with AB. In dealing with this alternative argument it must be remembered that this proceeding is not a challenge to the validity of the directions. The present question is whether the directions were misleading and deceptive in the sense claimed. In that regard, consideration must be given to the information available to the Department at the time and the circumstances then existing in and by which Mr Schultz formed his conclusions about the suitability of CPR Property within the meaning of cl 16. The applicants' submissions cannot be reconciled with the terms of cl 16 or of the directions. The clause did not require, and the directions did not represent, that the Principal's Representative had reached his state of mind with any particular degree of certainty or as a result of a decision-making process of any particular degree of thoroughness. As noted above, it seems to me that the most that can be said to have been required by the clause and represented by the directions is that the view of the Principal's Representative was reached by some rational process and on some rational basis. (2) The view of the Principal's Representative was reasonable in all of the circumstances in the sense that it had been reached by a rational process and was founded on a rational basis. From those meetings Mr Schultz knew (or must be inferred to have known) that the Department had reviewed works orders and discovered what it considered to be anomalies in the sense of unnecessary requirements for works items or excessive in number or wrongly identified and thus involving cost to the Department over and above what it considered proper and reasonable. These were not mere allegations. They were conclusions of other Departmental officers familiar with the tasks and systems involved founded upon an analysis of works orders raised by AB. Mr Schultz knew (or must be inferred to have known) that the works orders related to AB's area and that AB knew that CPR Property was a regular subcontractor in that area. He knew (or must be inferred to have known) that there was evidence that AB was in regular (nearly daily) telephone contact with Mr Hine when the Department's policy required its officers to make arrangements through the contractor and not to contact subcontractors directly. He knew (or must be inferred to have known) that AB had been seen working on a site with Mr Hine. He knew (or must be inferred to have known) that AB's stepson was an apprentice at CPR Property. The fact that, if asked, Mr Hine presumably could have given the same explanation to the Department in March 2004 as he gave in his unchallenged evidence in this proceeding is not to the point. As noted, this is not a challenge to the validity of the directions. The question whether the Department unreasonably failed to obtain centrally relevant information simply does not arise. Equally, the fact that ICAC had found insufficient evidence of criminal or corrupt conduct to warrant an investigation and that the Department's investigations were ongoing does not make the process leading up to or basis of the issue of the directions under cl 16 unreasonable. ICAC referred the matter back to the Department for action. The Department acted in accordance with the information available to it at the time. The Director-General as the Principal and Mr Schultz as the Principal's Representative were reasonably entitled to consider the material that was available to them and to reach the view that CPR Property was unsuitable to perform the works on the Department's properties. They were not required to reach a state of satisfaction by reference to any particular legal standard (such as beyond reasonable doubt or on the balance of probabilities). All that the directions conveyed were that the state of mind of the Principal's Representative met the standard of "reasonably regards...". That standard was met despite the fact that, with hindsight, other options would have been available to the Department involving less risk of unfairness to the applicants. The fact that the Department's actions involved such a risk of unfairness, I should say, does not make the process or views unreasonable. The weighing of the risk to the integrity of the Department's operations and to the public money for which it was responsible against the risk of unfairness to the applicants was a matter for the Director-General. Finally, despite the fact there is no evidence of any person actually mentioning cl 16 in the meeting on 19 March 2009 it must be inferred from the Director-General's decision (recorded in Mrs Trudgett's notes as "CPR gone") that he was aware of the power vested in him by that clause and (rightly) considered the power to be available. (3) The Department was undertaking an investigation into CPR Property's association with a Departmental employee and allegations of misconduct by the employee arising from that association. The Ernst & Young and Fordham investigations were considering CPR Property's association with AB and allegations of misconduct by AB arising from that association. (4) The Department had sufficient cogent information indicating the existence of an association (that is, by necessary implication, an improper association) between CPR Property and the unnamed Departmental employee such as to warrant the Principal's Representative prohibiting CPR Property from working on the Department's properties. The Department did have sufficient cogent information indicating the existence of an improper association between CPR Property and AB such as to warrant the Principal's Representative prohibiting CPR Property from working on the Department's properties. The information is that referred to under (1) above. The fact that the information is properly described by the applicants as circumstantial and inconclusive does not mean that the information was not sufficiently cogent for the purpose of the issuing of a direction under cl 16. There was more than a mere suspicion. There was a view based on information, albeit inconclusive and incomplete information. The Department was entitled to act under cl 16 provided the pre-conditions of that provision were met. (5) The Department had sufficient cogent information indicating that the allegations of misconduct against its employee by reason of the association between CPR Property and the employee warranted the Principal's Representative prohibiting CPR Property from working on the Department's properties. The allegations of misconduct against AB by reason of the association with CPR Property were of a most serious kind. The allegations were supported by the information that the Department had available to it at the time the directions were given. For these reasons I am not satisfied that the directions given on 24 March 2004 were misleading or deceptive. The directions accurately represented the position of the Director-General as the Principal and Mr Schultz as the Principal's Representative at the time. This aspect of the claim cannot be upheld. According to the applicants this duty required that there be sufficient objective grounds to justify the exercise of the contractual rights afforded to the Department under that clause. Further, the applicants said that part of this duty included the Department investigating the matter properly before giving a direction under cl 16, such proper investigation to include giving Mr Hine an opportunity to be heard. The applicants said that if the Department had acted in accordance with this duty then Mr Hine would have provided to the Department the same information as contained in his unchallenged evidence before this Court. In his evidence before this Court, Mr Hine said that: According to the applicants the respondents had not challenged this evidence in the proceeding and thus the evidence must be accepted as the true position. It follows, the applicants said, that if the Department had complied with the duty of care owed to the applicants it would have found out the true position and thereby (the applicants said) not issued the directions. However, the Department had not exercised reasonable care and skill in determining whether the contractual conditions of cl 16 had been fulfilled and there were not sufficient objective grounds to justify the exercise of the contractual rights afforded under cl 16. Specifically, the Department had not properly investigated the matter before giving the directions under cl 16 on 24 March 2004 including by reason of the fact that the Department had not given Mr Hine an opportunity to be heard. These failures constituted breaches of the duty of care which the Department (and the Corporation) owed to the applicants and as a result of which the applicants suffered loss and damage (in short, the destruction of the business of CPR Property and related consequential losses and damage). Accordingly, the applicants' submissions emphasised factors said to create a relationship between the Department and the applicants such as to give rise to a duty of care, being: - (i) the long-term relationship between Mr Hine and the Department, in which he had previously worked as a sole trader contracted directly by the Department to work on its properties, (ii) the fact that Mr Hine's change in status from a sole trader to a body corporate (CPR Property) and from a direct contractor to a subcontractor was the result of a decision by the Department for the purpose of its administrative convenience only, but for which Mr Hine would have continued to work as a contractor to the Department protected by a direct contractual relationship, and the Department's knowledge of the same, (iii) the Department's knowledge that the business of Mr Hine and, it may be inferred, CPR Property, involved work only on the Department's properties, (iv) the terms of the head contract, specifically cl 16, by which the Department is said to have assumed responsibility for determining whether or not Willowdene or Transfield could use CPR Property as a subcontractor, and (v) the Department's knowledge that its exercise of power under cl 16 would cause loss to the applicants. The applicants said that, in these circumstances, a duty of care was owed as proposed. By reference to the factors identified as relevant in Perre v Apand Pty Limited (1999) 198 CLR 180 ; [1999] HCA 36 at [106] , the applicants submitted that the loss to the applicants by reason of the breach of duty was foreseeable. The liability was not indeterminate but related to the class of subcontractors the subject of cl 16 only. There was no question of autonomy involved as there was a contractual obligation to issue a direction only in accordance with the terms of cl 16. The applicants were vulnerable to the risk of loss by reason of the Department's conduct because they worked on the Department's properties only and the subcontracts from Willowdene and Transfield permitted termination without cause. The present case is fact specific and arises in the way in which the three parties have chosen to conduct their affairs. The case is not within any established category in which liability for negligence is imposed. The fact that the harm suffered by the applicants (loss of profits from the business of CPR Property) was a reasonably foreseeable consequence of the issue of the directions under cl 16 of the head contract does not mean that the respondents are liable in the tort of negligence to the applicants. Accordingly, and as McHugh J said in Perre v Apand at [94], further inquiry is required. Once that inquiry is undertaken it is apparent that the claim confronts numerous legal and factual difficulties. The first difficulty relates to the imposition of a duty of care. The totality of the relationship between the parties, not merely the foresight and capacity to act on the part of one of them, is the proper basis upon which a duty of care may be recognised. This is not a case where the respondents exercised some statutory power to the applicants' detriment. The relationship between the respondents and the applicants was purely commercial. The Department owns a vast number of properties across NSW. It needs to have them maintained and repaired so that it can fulfil its statutory functions. In so doing the Department expends public money for a public purpose. But that does not bring any public law element into the Department's relationship with those who deal with it in providing services of maintenance and repair. In the context of this proceeding, the Department is no different from any other person or body which has a very large property portfolio and seeks the commercial services of third parties to keep the portfolio in good order and repair. It follows that the legal analysis cannot be affected by any generalised notion that government agencies should somehow be better or fairer than private entities in their commercial dealings with third parties. The cases in this area of liability for pure economic loss emphasise certain basic matters about the way in which our social and legal relations are structured. Contrary to the applicants' submissions, the issue of individual autonomy looms large in this context. That issue applies whether the damage suffered is injury to person or tangible property or pure economic loss. If the defendant should have had those interests in mind, the law will impose a duty of care. If not, the law will not impose a duty. That is an important limitation on their utility as a principle for determining whether a duty exists. Recognition of that limitation also answers the criticism that indeterminacy of liability and conduct legitimately protecting or pursuing a person's social or business interests are not useful criteria in determining duty because they are not relevant to all cases of pure economic loss. On the contrary, they are useful because, when they apply, they provide valid reasons for rejecting a duty. It hardly needs to be said that, when they are absent, no duty, or even a prima facie duty, automatically arises. It is a corollary of that responsibility that a person is entitled to make those choices for him or her self without unjustifiable interference from others. In other words, the common law regards individuals as autonomous beings entitled to make, but responsible for, their own choices. The legal doctrines of duress, undue influence and criminal liability are premised on that view of the common law. In any organised society, however, individuals cannot have complete autonomy, for the good government of a society is impossible unless the sovereign power in that society has power in various circumstances to coerce the citizen. Nevertheless, the common law has generally sought to interfere with the autonomy of individuals only to the extent necessary for the maintenance of society. In the law of liability for economic loss, we have a notable example of the common law's concern for the autonomy of individuals. Social and commercial life would be very different if it did. Indeed, leaving aside the intentional tort cases of wrongful interference with another person's legal rights (inducing breach of contract, intimidation and conspiracy, for example) a person will generally owe no duty to prevent economic loss to another person even though the first person intends to cause economic loss to another person. In our free enterprise society, no one questions the right of the trader to increase its advertising or cut its prices even though that action is done with the intention of taking the market share of its rivals. Nor is the immunity confined to traders. As long as a person is legitimately protecting or pursuing his or her social or business interests, the common law will not require that person to be concerned with the effect of his or her conduct on the economic interests of other persons. And that is so even when that person knows that his or her actions will cause loss to a specific individual. Thus, a consumer owes no duty to a trader not to cause loss to that person by withdrawing custom. However, where other indicia of duty are present, the cloak of immunity cannot extend to conduct which cannot be fairly described as a legitimate pursuit or protection of a person's interests. What then is not a legitimate protection or pursuit of one's interests? Ordinary competitive conduct imposes no duty to protect others from economic loss. At the other end of the spectrum, conduct involving deceit, duress or intentional acts prohibited by law could seldom, if ever, be regarded as done in the legitimate protection or pursuit of one's interests. However, it does not follow that, other indicia of duty being present, a person will always lose the immunity given to protect the autonomy of the individual merely because his or her conduct has been done in breach of law. It would be curious if breach of s 52, or a provision of Pt IV, of the Trade Practices Act 1974 (Cth) automatically meant that the defendant owed a common law duty of care to all those that he or she knew would be affected by the breach. Between the extremes are acts whose legitimacy will no doubt affect minds differently. They are likely to involve sharp or ruthless conduct. Perhaps no more can be said in the abstract than that the line of legitimacy will be passed only when the conduct is such that the community cannot tolerate it. Speaking generally, a person owes no duty to prevent economic loss to another person even though the first person intends to cause economic loss to that other person. This particular immunity from liability reflects the common law's concern with the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action. Thus, as long as a person is legitimately protecting or pursuing his or her commercial interests, the common law does not require that person to be concerned with the effect of his or her conduct on the economic interests of other persons. The Department was entitled to make business arrangements for the maintenance and repair of its properties as it saw fit. It was also entitled to change its arrangements from time to time assuming no other legal constraint (such as a contract) confined it. The change that it made to its arrangements in or about 2002, to use contractors across large areas and not to contract directly with multiple individual contractors, was an administrative re-arrangement of its affairs. It was a re-arrangement the Department was entitled to make. The Department was entitled to act in what it perceived to be its own best interests, no doubt having regard to its statutory and other obligations. It would be strange if action that the Department was able to take in its own best interests and without regard to the interests of the multiple individual contractors could be a factor indicating the existence of a duty of care owed to any one or more of those multiple individual contractors. Similarly, Mr Hine was entitled to arrange his business as he saw fit. Presumably the fact that he worked exclusively for the Department as a sole trader and then under the auspices of CPR Property was the result of a business decision that he made about the form of operation he considered to be in the best interests of his business. In making that decision it must be inferred that Mr Hine weighed up for himself both the benefits and the risks. One obvious benefit is ease of management of a single client. Another might be a low risk of bills not being paid. One obvious risk is that if the single client decides not to use the services of the business then the business will cease unless and until replacement clients can be found. Whatever the risks and benefits these were matters that Mr Hine was able to weigh up. In our society Mr Hine was free to make his own choice as to the best way for him legitimately to pursue his own interests. My inference that the Department knew that Mr Hine and later CPR Property worked exclusively on the Department's properties does not alter the fact that it would be odd to treat as factors in favour of the imposition of a duty of care matters which, properly analysed, are nothing more than an expression of our law's acceptance of an individual's legal right to pursue legitimate business and commercial interests generally without regard to the impacts on others. For the same reasons I am unable to accept that the applicants were vulnerable to harm from the respondents' conduct in the relevant sense. Rather, "vulnerability" is to be understood as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. Mr Hine chose to structure his business in the way that he saw fit and, presumably, to maximise his own commercial interests. He must be taken to have made a business decision to work only on the Department's properties based on his own perception of the benefits and risks of having a single large client. Far from that decision making him vulnerable in the relevant sense, the decision shows Mr Hine's exclusive control over his business undertaking and his associated level of risk and vulnerability to changes in circumstances. Our social and legal system gave Mr Hine the autonomy to arrange his business as he saw fit. Mr Hine could have protected himself from the Department acting with a lack of reasonable care by not working for the Department or by expanding his client base so that the loss of one client could not destroy the entire business. Similarly, it also could be said that the applicants had no control over the contractors' decision to give them work. Or that the applicants had no control over the Department's appointment of contractors. Or that the applicants had no control over the Department's allocation of work to contractors. All would be true as the applicants had no control over many things. But that does not make them vulnerable in the sense of being unable to protect themselves from harm. Once these factors are put to one side (as I consider they must be, consistent with principle) the only matter left is the existence of cl 16 of the general conditions of the head contract. The first and obvious point is that cl 16 is in a contract between the Corporation and the contractors (specifically, Willowdene and Transfield). It is not apparent that Mr Hine knew about cl 16 before he received the directions or in any way relied on the clause in the arrangement of his business affairs. In these circumstances it is not clear how the presence of cl 16 in the head contract gave rise to any legal relationship (such as the existence of a duty of care) between the Corporation or the Department and the applicants. I also do not see cl 16 as a provision by which the respondents assumed any responsibility towards the class of existing or potential subcontractors. My inferences that the Department must have anticipated the almost routine use of subcontractors by the contractors and that many of the trade contractors with whom the Department used to contract directly would continue to work on its properties as subcontractors are insufficient to constitute the clause as having that legal consequence. The clause simply vests a conditional power in the Department to prohibit the contractor from using a particular subcontractor on the specified grounds. It is a power of the Department as against the contractor. It is not a power carrying with it a duty owed to the subcontractor. I cannot see any similarity between the present case and the "disappointed beneficiary" cases. As apparent from the discussion in Hill v Van Erp (1997) 188 CLR 159 , in such cases the primary relationship is between a solicitor and a client where there is an established duty of care. Breach of the duty causes no loss to the testator. The loss is that of the disappointed beneficiary. But the interests of the testator and beneficiary are common. The testator's purpose in retaining the solicitor is to ensure their will is effective to dispose of the estate as the testator wishes. In these circumstances the courts have imposed a duty of care upon the solicitor in favour of the intended beneficiary. In the present case, by contrast, the contractual relationship is with the contractor. It is difficult to see why the Department owed any duty of care to the contractor in respect of its exercise of powers under cl 16, let alone the subcontractor. Further, the interests of the parties are not common. The Department wants to ensure its properties are maintained for the best price possible. The contractor wants to ensure the price enables it to get a reasonable return. The subcontractor also wants to obtain a reasonable return for the work performed. The Department's purpose in retaining the contractor is not to ensure the subcontractor gets work and can profitably run a business. It is to ensure the work gets done properly and for a reasonable price. These facts cannot be characterised as analogous to the will cases or any other recognised category of case in which a duty has been found to exist. In terms of the factors identified as relevant in Perre v Apand and Woolcock , I accept that the issuing of the directions under cl 16 involved a reasonably foreseeable risk of harm to the applicants. Mrs Trudgett and Mr Schultz both agreed that harm to the applicants was obvious. Understandably they did not agree that the Department intended harm to the applicants. Harm was a mere consequence of the Department's decision that it had to act to protect its interests and the public money it manages. I accept their evidence. I also accept that this is not a case where liability would be indeterminate. The only persons within the class to whom the duty is owed would be those subcontractors exposed to an exercise of power under c 16. Nevertheless, I consider that imposition of a duty of care would impose an unreasonable burden on the autonomy of the Department (adopting the language of McHugh J in Perre v Apand at [133]). My reasons are those given above. I also do not accept that the applicants were vulnerable as required, also for the reasons given above. In conclusion, in circumstances where the Department was pursuing its legitimate interest in ensuring the integrity of its systems for work and that public money was not either being misappropriated or at risk of misappropriation, I can see no reason to accept that the Department "should have had the interest or the interests of the [applicants] in contemplation before [it] pursued...that course of conduct" ( Perre v Apand at [100]). Accordingly, I do not accept that the respondents owed any duty of care to the applicants. The second difficulty relates to the content of the duty of care said to arise. If I am incorrect in the conclusion that no duty existed, then I should also observe that I cannot see any basis for the conclusion that the duty of care imposed upon the respondents an obligation to do more than cl 16, in terms, required. In this regard the applicants submitted that the duty of care required the Department to undertake a proper investigation of the matter, including giving Mr Hine an opportunity to be heard before issuing the directions. Clause 16, however, contains no such obligations. As discussed, the clause requires only that the view of the Principal's Representative meet the description of "reasonably regards" and relate to one of the nominated classes (incompetent, negligent or otherwise unsuitable). The clause does not impose any obligation on the Department to investigate a matter either at all or in a particular way or to a particular standard. I have accepted that the issue of a direction carries with a representation that the view of the Principal's Representative has been reached by some rational process and on some rational basis (by reason of the reference to "reasonably") but this does not necessarily require an investigation of any kind. What is rational or "reasonable" depends on the circumstances as perceived at the time. The clause certainly does not involve as any form of necessary pre-condition which affords a right to be heard. The legal source of these asserted obligations is not apparent. They extend well beyond cl 16 which is said to be the critical factor in the imposition of the duty of care by reason of the alleged assumption of responsibility by the Department. Accordingly, and assuming that my rejection of that argument above is incorrect, I cannot see why the duty of care would impose obligations extending beyond the scope of that said to give rise to the duty in the first place. The third difficulty relates to breach. If, as I consider must be the case, the content of any duty of care (if one exists at all) does not extend beyond the terms of cl 16 of the head contract, then the Director-General and Principal's Representative did nothing more than exercise a power in circumstances where they were entitled to do so. Based on the information available at the time the Principal's Representative did reasonably regard CPR Property as unsuitable to perform the works on the Department's properties for the reasons given in the direction. The Director-General was entitled to act under cl 16 to protect the interests of the Department. The Director-General was not required to stand by and do nothing in order to ensure exploration of all or even any possible avenues by which the applicants could persuade the Department that the allegations against them were false. The fact that the treatment of the applicants was different from the treatment of AB and Willowdene is insufficient to establish breach. It is true that AB was suspended on full pay and had a full right to be heard on all the allegations. Willowdene also continued as a contractor while the Ernst & Young investigation clearing Willowdene from wrongdoing was completed. Willowdene was given an opportunity to be heard in that investigation. In contrast, CPR Property was prohibited from working on the Department's properties. But the Department could not take immediate action against AB or Willowdene as it did against CPR Property because it was bound by legal obligations to them. It may seem unfair that the Department chose to act against CPR Property in these circumstances but unfairness at large is not the touchstone of breach. Breach is to be measured against the content of the duty of care found to exist. If a duty is found to exist then, as I have said, I cannot see how it could be other than co-extensive with cl 16. In that event, there was no breach. The fourth difficulty relates to causation. Even if I am incorrect in respect of each of the above conclusions, there seems to me to be a fundamental flaw in the applicants' approach to the issue of causation. The plank in the argument that I consider flawed is the assumption that if Mr Hine had been given a right to be heard the Principal's Representative would not have reached the view he did, the Director-General would not have acted as he did, and the directions thus would not have been issued. The applicants said I would make that finding because (at least as I understand it) Mr Hine's evidence in this proceeding denying any wrongdoing had not been challenged and thus must be accepted. But, consistent with my conclusions above, this finding does not follow from the mere acceptance of Mr Hine's unchallenged evidence in this proceeding. The respondents chose not to challenge Mr Hine's evidence for their own forensic reasons (apparently because they took the view that the evidence was simply irrelevant and thus not worth contesting). The fact that the evidence has not been challenged in this proceeding (and thus, for the purpose of this proceeding, should be accepted given the proceeding's adversarial nature) does not mean that the Department would have accepted the evidence if it had been given in 2004. I cannot reach any state of positive satisfaction (and certainly not on the balance of probabilities) that, if Mr Hine had been given the opportunity to explain his position to the Department in 2004 and before the directions were issued, the directions would not have been issued. For example, AB gave similar explanations to Mr Fordham but he did not accept some of them and findings of misconduct were made. The Department subsequently terminated AB's employment. It follows that I cannot accept that the asserted breach of the duty of care caused the applicants' loss. The provisions of the Civil Liability Act 2002 (NSW), which I am bound to consider and apply, do not affect my conclusions. I have considered the general principles in s 5B. The references therein (ss 5B(2)(c) and (d)) to the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm, at least in the context of this case, support the conclusions I have reached. By this I mean that the burden of investigation and decision-making the applicants seek to place on the respondents under the posited duty of care is unreasonable having regard to the very large number of properties the Department owns and the large number of works contracts in which it must be involved as a result. The social utility of the Department acting in what it believes to be the public interest by protecting public money from the risk of misappropriation (even if it turns out to be incorrect) is high. The other principles in s 5C also simply confirm the views I have reached. Section 5D , about causation, raises a question about the admissibility of Mr Hine's evidence (see s 5D(3)(b)) , that is Mr Hine's evidence about what he would have done was not against his interests. However, as I received no submissions about that issue I do not rely upon it or consider it further. Otherwise, given my findings above, I do not consider that "the negligence was a necessary condition of the occurrence of the harm" as required by s 5D(1)(a). It was not because I cannot find that the harm would not have occurred irrespective of the alleged negligence. Section 42 (principles concerning resources, responsibilities etc of public or other authorities) does not require any different or additional finding. For these reasons I do not accept that the respondents have any liability to the applicants for breach of the alleged duty of care. Accordingly, the applicants contend that in issuing the directions to Willowdene and Transfield on 24 March 2004 the respondents breached a duty of care owed to the applicants. The respondents breached that duty because the Department did not properly investigate the matter before issuing the directions and, in particular, did not give Mr Hine an opportunity to be heard. The directions contained representations that were inaccurate on the two bases identified in respect of the claim for misleading and deceptive conduct. As a result of the negligent misstatements the applicants suffered loss and damage, For the reasons given above these claims cannot be sustained. The respondents did not owe any duty of care to the applicants when issuing the directions. The Department complied with the requirements of cl 16 of the head contract when issuing the directions. As a result, even if the respondents owed any duty of care to the applicants, there was no breach. The representations conveyed by the directions accurately reflected the positions of the Director-General as the Principal and Mr Schultz as the Principal's Representative. The applicants suffered loss and damage by reason of the issue of the directions but not by reason of any alleged negligence. It follows that the claim for negligent misstatement must also be dismissed. Halsbury's Laws of Australia (at 16 October 2009). 415 Tort. Mr Hine gave evidence that after the directions were issued he was contacted by a representative of Willowdene. The representative instructed Mr Hine that he had to cease work on the Department's properties immediately. A representative of Transfield contacted Mr Hine the following day. The representative told Mr Hine that Transfield had to take back the 12 jobs it had just given him. I accept Mr Hine's evidence. The 12 jobs that Transfield had given CPR Property were orders pursuant to the contract between those parties. According to the applicants the Department knew of the contracts between CPR Property and the contractors and, by the issue of the directions, intended to procure their breach. I do not accept that the elements of this tort have been established on the evidence. The directions were authorised to be issued by cl 16 of the head contracts. The issue of a direction as authorised cannot be an unlawful interference with the contracts between the contractors and CPR Property. The evidence also does not establish any intention on the part of the respondents to interfere with the contracts between the contractors and CPR Property. It is true that officers of the Department knew that CPR Property was a subcontractor of Willowdene and Transfield. But the evidence does not prove that any officer had any intention of procuring the contracts' breach. The Department (through the Director-General as the Principal and Mr Schultz as the Principal's Representative) intended to exercise the power under cl 16. It may be accepted that they knew this would cause harm to CPR Property but no harm or interference with any contract of CPR Property was intended. Even if the elements of the tort were established I am unable to see why the respondents would not have available the defence of justification. However, as the defence was not specifically pleaded and I heard no argument about it I will say nothing more about it. Over many years he had built a successful business working exclusively on properties owned by the Department. Until the events of 2003-2004 his working relationship with the Department appears to have been perceived as mutually satisfactory. From Mr Hine's point of view he was wrongly implicated in alleged misconduct by a Departmental employee. Unlike the employee and the contractor involved, Mr Hine was given no chance to clear his name. The Department prohibited contractors from using the services of Mr Hine's company, CPR Property. The investigations of the conduct of the employee and contractor disclosed no evidence of any wrongdoing by Mr Hine or his company. While the employee ultimately was dismissed, the contractor's contract was renewed. Mr Hine's business, by contrast, was destroyed. In these circumstances it would be surprising if Mr Hine did not feel badly and unfairly treated by the Department. Mr Hine's counsel, Mr Stevenson SC and Mr Bova, put the arguments in support of a legal remedy for the applicants in the most comprehensive and persuasive manner possible. I should record that they did so pursuant to a referral under Order 80 of the Federal Court Rules , the purpose of which is to facilitate the administration of justice by the provision of legal assistance to litigants who are otherwise unable to obtain assistance. There is not, however, a legal remedy for every perceived injustice. This is particularly so when the perceived injustice involves pure economic loss arising from dealings in a wholly commercial context. In short, Mr Hine was entitled to act in his perceived best interest when he developed a business based on working for the Department as a single client. The Department was entitled to act in its perceived best interest, as a guardian of public moneys, when it decided to rely on a contractual right to prohibit contractors from engaging Mr Hine's company as a subcontractor. The structure of Mr Hine's business made this action by the Department particularly devastating to Mr Hine. But the Department's actions were lawful --- they did not involve any misleading or deceptive representation about Mr Hine's company, they did not breach any duty of care the respondents owed to the applicants, and they did not unlawfully interfere with any contract between Mr Hine's company and the contractors. It follows that the further amended application filed 30 October 2007 must be dismissed. An order for costs also must be made. I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

misleading and deceptive conduct head contract and subcontract whether directions conveyed a representation that subcontractor permanently precluded from working as a subcontractor for the contractor whether such a representation accurately reflected the required state of mind whether directions conveyed a representation that there was a reasonable basis to prohibit the subcontractor from working for the contractor whether there was such a reasonable basis on the facts of the case whether government department owes duty of care to a subcontractor whether department required to have the interests of the subcontractor in contemplation before issuing a direction to prohibit the subcontractor working for the department's contractor commercial context pure economic loss individual autonomy arising out of commercial context no duty of care trade practices tort

His service was "operational service" within the meaning of the Veterans' Entitlements Act 1986 (Cth) ('the Act') and his widow applied for a war widow's pension pursuant to s 14 of the Act. Mr Byrne died in November 1962 when his boat overturned during a fishing trip on Tantangara Dam in the Snowy Mountains. 2 A coronial inquiry found that Mr Byrne had died in a ' tragic accident ' and that the cause of his death was drowning. That conclusion was adopted by the Repatriation Commission, which refused Mrs Byrne's claim for a pension, upon being satisfied that the veteran's death was not service related. The Veterans' Review Board affirmed the Commission's decision, which was later affirmed by the Administrative Appeals Tribunal ( Byrne v Repatriation Commission [2006] AATA 416). Mrs Byrne appeals the Tribunal's decision. 3 Mrs Byrne put to the Tribunal that her husband suffered from ischaemic heart disease ('IHD') and coronary artery disease ('CAD'), each said to be war-caused conditions. It was accepted by the Tribunal that Mr Byrne did suffer from CAD (at [66]). The issue in this appeal concerns the Tribunal's finding that it was satisfied beyond reasonable doubt that CAD was not a contributing factor to the death of Mr Byrne by drowning. Two grounds of appeal are pressed. The Tribunal's finding that it was not satisfied that Mr Byrne suffered from IHD is not challenged and those parts of the notice of appeal which refer to IHD are not pressed. It is convenient to deal with the second ground of appeal first. The Tribunal accepted that hypothesis to be reasonable (at [89]). ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 571; Repatriation Commission v Deledio (1998) 83 FCR 82 at 91). 5 The second ground of appeal alleges that the Tribunal failed to apply that test correctly. 7 That submission is rejected. The Tribunal had already determined that the kind of death was drowning (at [57]). That was not in issue. It is clear that the Tribunal understood that the question for determination was whether it was satisfied that the hypothesis that CAD had contributed to his death had been disproved beyond reasonable doubt. The Tribunal set out the test as enunciated in Byrnes at [90]. In that context and as a matter of construction, the requisite satisfaction expressed at [93] of the Tribunal's decision related directly to the contribution of CAD. Mrs Byrne submits that the Tribunal gave no reasons or no sufficient reasons for that conclusion as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). 9 It is necessary to have some understanding of the context of the Tribunal's conclusion and the structure of the Tribunal's decision. The Tribunal considered the whole of the evidence before it, then gave its reasons and consideration under consecutive headings. 10 Under the heading '[c] onsideration of "kind of death" ' the Tribunal found that the "kind of death" was, on the balance of probabilities, drowning. The Tribunal stated at [57] that it did not consider IHD or CAD was a "kind of death". It then proceeded to discuss the conflicting medical opinions about the kind of death and whether a cardiac event arising from CAD caused the death. In particular, it engaged in a detailed analysis of the evidence concerning the effect of IHD or a cardiac event arising from CAD. At [64] --- [68] the Tribunal weighed the evidence on a cardiac cause of death. Accepting that Mr Byrne had CAD (at [66]), the Tribunal was not satisfied on the balance of probabilities that it was a cause of death or a "kind of death" (at [68]) for reasons that it gave by reference to the evidence and its assessment of it. In summary, it referred to the two premises on which the opinions that there was a cardiac cause of death were based. Those premises were that the autopsy revealed that Mr Byrne had no water in his lungs and that he had made no effort to save himself. The Tribunal did not accept that either premise was correct, so that the opinions based on those premises were without foundation. 11 The next heading in the decision reads '[i] s there a reasonable hypothesis connecting Mr Byrne's death with his service? ' The Tribunal noted that, initially, two hypotheses had been advanced relating to malaria and IHD and that a third hypothesis was advanced during the hearing. That hypothesis was, as I have noted, that CAD impaired Mr Byrne's ability to survive once he was in the water. No complaint is made about the Tribunal's treatment of the first two hypotheses in this appeal. 12 The Tribunal proceeded to consider the applicable principles. There is no criticism of the statement by the Tribunal of those principles. 13 Despite having concluded that it was not satisfied on the balance of probabilities that CAD was a cause of death, the Tribunal reiterated the conclusions in the medical evidence in support of the third hypothesis that CAD was a cause of death and found that this was a reasonable hypothesis connecting Mr Byrne's death with his war service (at [88] --- [89]). 14 Mrs Byrne points to the Tribunal's finding at [66] that CAD was not a cause of death on the balance of probabilities. She submits that this left open the possibility that the contribution of CAD to Mr Byrne's inability to survive once in the water was sufficient for the purposes of s 120(1) of the Act, to establish that the death was "war-caused" within s 8 of the Act. The Tribunal did not, however, stop its analysis at that stage of its reasoning. It rejected the premises on which the possibility was based. It specifically considered whether it was satisfied that Mr Byrne's death did not arise out of a cardiac event and concluded, in the light of all of the evidence, that it was so satisfied. 15 The Tribunal acknowledged (at [90]) that, having found a reasonable hypothesis, Mrs Byrne's claim would succeed unless the hypothesis was disproved beyond reasonable doubt in accordance with the principles enunciated in Byrnes at 571 and noted in the Tribunal's decision. Those opinions concluded that death was caused by such a cardiac event rather than by drowning. On the evidence, we are satisfied beyond reasonable doubt that Mr Byrne drowned, and that neither IHD nor CAD contributed to his death. It was that evidence which disproved the hypothesis that Mr Byrne's ability to survive in the water was impaired by war-caused CAD. The Tribunal cited that evidence as the basis for its conclusion. The reasons explain how and why the Tribunal came to its conclusion. It rejected the premises on which the hypothesis of CAD as a cause of death was based. Once those premises were rejected, the hypothesis that CAD impaired Mr Byrne's ability to survive once in the water could not stand. In context, it cannot be said that the Tribunal failed to give reasons for its satisfaction, beyond reasonable doubt, that the cause of death was drowning, to which CAD made no contribution. 18 The appeal should be dismissed. The applicant should pay the respondent's costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

hypothesis that veteran's death was contributed to by war-caused coronary artery disease hypothesis disproved beyond reasonable doubt tribunal gave adequate reasons for drawing that conclusion appeal dismissed veterans' affairs

Conduct by which, as an internet service provider, the first respondent purported to impose fees or charges on customers in respect of complaints made by them to the Telecommunications Industry Ombudsman in relation to its services. 2. Its failure to comply with particular determinations of the Telecommunications Industry Ombudsman requiring the payment of compensation to complainants by a specified date. 2 The applicant also sought orders against the second respondent, Mr Francis, as ancillary to that conduct. It is not in dispute that, at all material times, Mr Francis was the sole director and shareholder of the first respondent, and was employed by the first respondent as its Chief Executive Officer. As a supplier of internet access services, the first respondent was a carriage service provider within the meaning of s 87(1) of the Act , and an eligible carriage service provider within the meaning of s 127 Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) ("T(CPSS) Act "). As a result the first respondent was subject to the TIO Scheme (s 128 T(CPSS) Act ). It was a condition of the TIO Scheme that customers were not liable to pay any fee or charge (however described) to the provider of a carriage service in respect of a complaint made by a customer to the TIO about the carriage service (s 128(4) T(CPSS) Act ). • On 10 March 2006 the TIO issued a determination to the first respondent, pursuant to the TIO Scheme, requiring the first respondent to provide a refund of $35.00 to a customer within 14 days. The first respondent did not comply with the determination until July 2007, thereby failing to comply with cl 6.1 of the TIO Constitution , s 132 T(CPSS) Act , and a service provider rule within the meaning of s 98 and Sch 2 of the Act . Accordingly the first respondent acted in contravention of s 101(1) of the Act . • On 26 November 2006, the TIO issued a determination to the first respondent pursuant to the TIO Scheme, requiring the first respondent to provide a refund of $34.95 to another customer within a specified timeframe. The first respondent did not comply with the determination until July 2007, thereby failing to comply with cl 6.1 of the TIO Constitution , s 132 T(CPSS) Act , and a service provider rule within the meaning of s 98 and Sch 2 of the Act . Accordingly the first respondent acted in contravention of s 101(1) of the Act . • On 9 July 2007 the applicant issued a direction to the respondents pursuant to s 102(2) of the Act by which the first respondent was required to remedy its terms and conditions so as not to purport to impose any charge on customers in respect of complaints to the TIO, by no later than 5pm on 23 July 2007. The respondents did not comply with the direction from 23 July 2007 to 1 January 2008. 4 The applicant claimed that this conduct by the respondents was in contravention of s 101(1) and s 102 (4) of the Act , s 132 T(CPSS) Act , and s 52 TPA, although in resolution of the proceedings the applicant did not press the claim under the TPA. Section 101(1) is a civil penalty provision (s 101(3) of the Act ). On 30 September 2008 the applicant and the respondents reached agreement as to the terms of resolution of these proceedings to jointly submit to the Court, including proposed orders. Declarations as to contraventions of s 101(1) of the Act by the first respondent. 2. Declarations that Mr Francis was knowingly concerned in or party to, and aided, abetted, counselled or procured, the contraventions by the first respondent, being conduct of the kind referred to in s 101(2) of the Act . 3. Injunctions against the first respondent and Mr Francis pursuant to s 564(1) of the Act . 4. An agreed amount to be paid by the respondents towards the applicant's cost of the proceedings. 2. A declaration that the second respondent, Francis, was knowingly concerned in or party to, and aided, abetted, counselled or procured, the contravening conduct of WE.net referred to in paragraph 1 above, being conduct of the kind referred to in section 101(2) of the Telco Act. 3. 4. 5. A declaration that WE.net has contravened section 101(1) of the Telco Act, in that it failed to comply with section 102(4) to the Telco Act, by failing to comply with a written direction of ACMA issued pursuant to section 102(2) of the Telco Act dated 9 July 2007. 6. A declaration that the second respondent, Francis, was knowingly concerned in or party to, and aided, abetted, counselled or procured, the contravening conduct of WE.net referred to in paragraphs 3, 4 and 5 above, being conduct of the kind referred to in section 101(2) of the Telco Act. 12C. an initial payment of $200 on or before 30 March 2009. 12C.2. further payments of $200 on or before each of the following dates: 30 June 2009, 30 September 2009, 30 December 2009, 30 March 2010, 30 June 2010, 30 September 2010, 30 December 2010, 30 March 2011, 30 June 2011. An order that each of WE.net and Francis pay the applicant's costs of and incidental to these proceedings in the agreed amount of $2,000, in accordance with paragraph 13A. 13A. 14. And the Court notes the agreement of the parties that orders 12, 12B, 12C, 13 and 13A will be made by the Court but will not be entered and sealed under Federal Court Rules Order 36 unless there is default on the part of the First or Second Respondents. 8 Notwithstanding the discretion vested in the Court by s 570(1) it is also clear that the Court should be aided by any negotiated agreement reached by the parties, and should not depart from an agreed penalty merely because it might have determined another amount to be appropriate, except in a clear case. This principle was explained by the Full Court in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 at 290, 298, and confirmed by the Full Court in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) FCAFC 72. 9 In this case the respondents were not legally represented. The applicant has however made submissions on penalty and other orders. The submissions of the applicant in relation to these issues are well-researched and helpful, and I understand from the directions hearing at which the parties last appeared that, while the respondents were not a party to the applicant's submissions, they did not demur from them. ( Australian Communications and Media Authority v Clarity1 Pty Ltd [2006] FCA 1399 ; (2006) 155 FCR 377 , NW Frozen Food [1996] FCA 1134 ; (1996) 71 FCR 285 , Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254 ; (2005) 215 ALR 281 , Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301. It is not in dispute that the second respondent, in his role as sole director, shareholder and Chief Executive Officer of the first respondent, was knowingly concerned in or party to the conduct of the first respondent and aided, abetted, counselled or procured the contravening conduct of the first respondent. This conduct of both respondents represented deliberate contravention of the Act over several years. • The applicant makes no claim that any substantive loss or damage was suffered as a result of the relevant contraventions, or that monetary amounts to which the relevant conduct related were substantial. However I consider that the matter is significant because of the four separate types of conduct pleaded, and that it is appropriate to order relief to ensure that the particular conduct does not recur. • It is not in dispute that the respondents have not previously been found by the Court in proceedings under the Act to have engaged in similar conduct. • The contravention of the legislation by the first respondent arose from conduct of the second respondent, who was clearly in a senior management role in the first respondent. • It is common ground that the first respondent does not presently operate as an internet service provider, with the result that the issue whether its corporate culture is conducive to compliance with the Act is of minimal relevance. Of more relevance in this context is the fact that the proposed injunctions are framed to apply should the first respondent resume operations as an internet service provider within a two year period. • Both respondents have co-operated with the applicant in seeking resolution of these proceedings. • Material before the Court indicates that the first respondent has no or very limited assets (Notice of Defence filed 22 July 2008 para 5, TS 24 June 2008 p 2 ll 40-41, TS 12 August 2008 p 2 ll 13-18) and that the second respondent is similarly financially disadvantaged (Notice of Defence filed 22 July 2008 para 4). The applicant accepted in its written submissions that the respondents had limited financial capacity. 14 Accordingly I consider that the penalties and other orders jointly proposed by the applicant and the respondents are appropriate and should be made by the Court. In doing so I note however the agreement of the parties that orders 12, 12B, 12C, 13 and 13A will be made by the Court but will not be entered and sealed under Order 36 Federal Court Rules unless there is default on the part of the First or Second Respondents. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

breach of telecommunications act 1997 (cth) (the act) civil penalty provisions proposed orders jointly submitted to court including declarations, pecuniary penalties, injunctions and costs relevant factors to take into consideration in assessing appropriateness of pecuniary penalties telecommunications

The respondent, the Commonwealth of Australia, seeks an order that the applicant provide security for costs in the sum of $50,000. This judgment concerns that issue. In due course it will be necessary for the applicant to obtain an extension of time in which to appeal. In June 1999, he was an unlawful non-citizen who had been detained in immigration detention at Villawood Immigration Detention Centre (Villawood). On 16 June 1999, following an incident in which he and others were involved, he was taken to a NSW prison, the Metropolitan Remand and Reception Centre at Silverwater. He was held there and at the prison hospital in Long Bay Gaol until 1 March 2000 when he was returned to Villawood. 3 In the proceedings before the primary judge, the applicant based his case on the following propositions (see Soh v Commonwealth of Australi a [2008] FCA 520 at [1] ). Neither the Migration Act 1958 (Cth) nor any NSW legislation gave the governors of the respective prisons any lawful authority to detain him, and there was no other lawful authority for them to do so; the Commonwealth is said to be vicariously liable in damages for such false imprisonment by the governors. Chapter III of the Constitution prohibits the Commonwealth from imprisoning a person merely unlawfully in Australia in a place of criminal detention except as part of the recognised criminal processes, following the laying of a criminal charge against the person; likewise any State law or arrangement facilitating such illegal imprisonment is also invalid. Mr Furlong, the Operations Manager of Villawood who recommended to Departmental officers that Mr Soh be transferred to Silverwater, committed the tort of misfeasance in a public office. Neither Mr Nicholls, the Departmental officer who made the decision that a NSW prisons official should be requested to take Mr Soh into custody, nor Ms Symons, the officer who implemented that decision, afforded Mr Soh procedural fairness before Ms Symons made the request. The request was therefore invalid and the Commonwealth had no right in law to detain the applicant in Long Bay or Silverwater. The relief sought in the final further amended statement of claim (filed 30 November 2007) was damages, a declaration that the applicant's detention in Silverwater Prison and Long Bay Gaol between 16 June 1999 and 1 March 2000 was unlawful and a further declaration that the applicant was not liable to pay costs of his incarceration for the same period. 4 The primary judge dismissed the applicant's application for relief. In relation to the allegation of misfeasance by a public officer, the primary judge found that there was no evidence that Mr Furlong actually intended to cause the applicant harm. The primary judge similarly dismissed the applicant's cause of action for the tort of "unconstitutional detention". 5 It is necessary to focus on the applicant's primary cause of action (unlawful detention) in a little more detail given that the primary judge's rejection of this cause of action is centrally relevant to the appeal the applicant seeks to prosecute. It mattered not, according to the primary judge, that the person actually detaining the applicant in Silverwater Prison, the prison governor, was not a migration officer (as defined in s 5 of the Act) provided that a migration officer requested that the applicant be detained in this way. If the phrase is interpreted to mean only that an officer may arrange that a detainee be held within, and in that sense "in", the physical boundaries of a place that is a prison or remand centre, but that the phrase was not intended to confer authority on the officer to have the detainee made subject to the control of the ordinary prison etc authorities, then the applicant's argument would succeed. But the consequences would include that the detaining officer or his/her supervisors would need urgently to arrange for other "officers" to detain the person within such boundaries or to have pre-arranged facilities for this. This would make urgent detention in a prison etc quite impossible in many cases. In my opinion, such an inconvenient result, possibly including threats to peace and good order, or prejudice to the health or welfare of the subject detainee, should not be imputed as the parliamentary approach. The primary judge, however, rejected the applicant's submission that, based on the High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 , the decision to transfer him to Silverwater Prison was a nullity, thereby rendering his subsequent detention in Silverwater Prison unlawful. Even if it were the case that invalidity of the transfer decision rendered the subsequent detention unlawful (and the primary judge seemed to be of the view that it was not), the primary judge appeared to proceed on the basis it would be necessary for him to make a declaration to effect before the applicant could obtain damages for unlawful detention. In the result, the primary judge declined to make a declaration given the extraordinary delay between the making of the transfer decision and the bringing of proceedings. I would, in my discretion, decline to make such a declaration notwithstanding that, if the applicant be correct, it would have some utility in enabling him to mount a claim for damages on what might be the consequent invalidity of the Nicholls decision and the Symons request. Any invalidity of the detention at Silverwater for want of procedural fairness did not last long. Within a couple of months, Mr Soh had the repeated opportunity to say why thenceforth he should not be imprisoned. No case was sought to be made that in relation to the various reviews of his position after he was taken into Silverwater he was not afforded procedural fairness or that the consequent decisions were invalid for unreasonableness or otherwise. The applicant's complaint about the denial of procedural fairness by Mr Nicholls was first made more than eight years later. There was no chance for the respondent to redress that failure; the applicant was long gone from prison, indeed from Australia. There is no adequate explanation for the applicant's delay. The applicant evidently had actual access to private legal advisors. In any case, the NSW Legal Aid Commission provided a capable legal aid service for inmates of NSW prisons and remand centres in 1999-2000, as now. The delay is, in short, unconscionable or "unwarrantable ... The essential vice of the denial of procedural fairness is the denial itself. That cannot be remedied now. The public interest can be served by my discussion of the principles and their application to this case, without the necessity for a formal declaration. 11 Notwithstanding the provisions of O52 r 20 (which provides that "[u]nless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required") it is also important to recognise that other considerations arise in relation to an application for security in the context of an appeal. That consideration, it seems to me, is also reinforced by the judgment of Gummow J in Wiest v Director of Public Prosecutions and Anor [1988] FCA 450 ; (1988) 23 FCR 472. That case involved appeals against extradition with penal consequences. Such consequences were clearly very relevant considerations, but discretionary reasons moved the Court to order security for costs. Such discretionary considerations, which were particularly noted by Gummow J, included the delay between the filing of the papers and the bringing of the applications for security. His Honour referred to a particular circumstance which is relevant here, and that is that the applicant for security has a judgment in its favour. There was a reference by Gummow J to Bethune v Porteous (1892) 18 VLR 493 , again an old case. The significance of this factor was discussed by McHugh J in P S Chellaram & Co v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321. His Honour observed (at 323) that the fact that a party bringing proceedings is resident out of the jurisdiction and has no assets within the jurisdiction has been seen as a circumstance of great weight in determining whether an order for security for costs should be made. 13 There is no dispute that the applicant in the proceedings is both impecunious and is ordinary resident outside the jurisdiction. 14 As a general rule, in an application for security for costs, the Court should not be required to investigate in detail the likelihood or otherwise of success in the action or appeal. Having said this, it is necessary for the Court to canvass at some level the case the applicant seeks to put in determining whether an order for security should be made. The trial judge erred in law in concluding that Mr Nicholls' [who made the transfer decision] decision to transfer the Appellant to a state correctional facility was not void. The trial judge erred in law in concluding that it was necessary for him to declare Mr Nicholls' decision invalid before it became such. The trial judge erred in failing to conclude that the Appellant had been wrongfully imprisoned. 17 I presently do not see how the applicant's detention in Silverwater Prison and Long Bay Gaol could have been rendered unlawful by a decision to move him from Villawood even if that decision was infected by a denial of procedural fairness. It presently appears to me that at all times the applicant remained validly in "immigration detention" for the purposes of s 196 of the Act, given that "immigration detention" encompasses circumstances where an unlawful non-citizen is held "in a prison or remand centre of the Commonwealth, a State or a Territory "(s 5). 18 The decision to move him did not involve the exercise of an express statutory power which conditioned the detention. That is, a valid decision to transfer was not made, expressly, a statutory condition precedent to lawful detention in a state correctional facility. When in Villawood, the applicant was in immigration detention, as defined, and he remained in immigration detention, as defined, in Silverwater Prison and in Long Bay Gaol. The fact that the conditions in those last mentioned institutions were different to those in Villawood almost certainly could not bear upon the legality of the detention: Behrooz v Secretary of Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 48. 19 In short, I consider that the applicant has little prospect of persuading a Full Court that the denial of procedural fairness, which attended the decision to transfer him to Silverwater Prison, rendered his subsequent detention in that prison, or otherwise in a state correctional institution, unlawful. I am presently assuming that the Commonwealth will not challenge, by way of notice of contention, the conclusion of the primary judge that there had been a denial of procedural fairness. 20 Given this conclusion, there is otherwise little in the applicant's favour that might warrant rejecting the Commonwealth's application for security. I accept there is a public interest element in this litigation, involving as it does the detention of an unlawful non-citizen in state correctional institutions established for the incarceration of criminals in circumstances where the applicant had neither been charged with nor convicted of criminal offences. However, as earlier noted, the prospects of the applicant succeeding in the appeal are, in my opinion, extremely slight. The applicant is impecunious and now resides overseas. The Commonwealth has the benefit of the judgment of the primary judge. These various matters point, in my opinion, to ordering the applicant to provide security. 21 It is now necessary to consider the issue of the quantum of that security. In support of its notice of motion for security for costs, the Commonwealth has filed an affidavit of Dale Watson, a solicitor employed by the Australian Government Solicitor. Ms Watson deposes that the respondent seeks security in the sum of $50,000, representing an amount of $30,000 for anticipated legal costs and $20,000, being the minimum amount required to enforce any judgment in Korea. Enforcement costs would depend on numerous factors, including the nature of the judgment itself, whether the counterparty will retain counsel and/or mount a vigorous defense, etc. Such costs would likely range from KRW 20 million to KRW 60 million, but we would provide a more detailed estimate at a later stage if/when that becomes necessary. In the event that unforeseen complications arise, we would need to revisit our estimates. We also may wish to look at the practicalities of actually collecting on the judgment in more detail before proceeding against this particular party. I think the amount sought by the Commonwealth is a reasonable amount and it is entitled to security. However, I presently do not see the need to provide security both for the anticipated costs of the appeal and the costs of enforcing a judgment (presumably enforcing only a costs order) in Korea. If the Commonwealth has security for its costs, I apprehend no question of enforcement could arise. If I am mistaken in this respect, the amount of security can be revisited in a further application. I understand that it is common ground that if security was ordered, non-compliance with an order would result in dismissal of the proceedings. 22 I order that, within two months of the date of this judgment, the applicant is to provide security in the sum of $30,000. In the event that such security is not provided, I order that the application for an extension of time in which to appeal, be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

appeal from a decision of a single judge application for security for costs appellant impecunious and ordinarily resident outside the jurisdiction whether order for security for costs will stifle a reasonable arguable claim quantum of security ordered practice and procedure

The first is a non-claimant application ('the Hillig proceedings') by Mr Hillig, as administrator of the Worimi Local Aboriginal Land Council ('the Land Council'), for a declaration that no native title exists in relation to certain land in the Port Stephens area ('the Port Stephens land'). The second is a claimant application by Mr Gary Dates for a determination that native title exists over the Port Stephens land ('the Worimi proceedings'). The Port Stephens land was transferred to the Land Council pursuant to the Aboriginal Lands Rights Act 1983 (NSW) ('the ALR Act'). The Worimi proceedings are brought on behalf of women who claim the presence of a site sacred to them on the Port Stephens land. Mr Dates prefers to be known as Worimi. Generally, I will refer to him as 'Worimi' with respect to matters raised by him when he was unrepresented and as 'Mr Dates' as he was later referred to by his counsel. Worimi seeks to be joined to the Hillig proceedings. The basis of that application is an interest as a holder of native title rights or as a person authorised by those who assert native title over the Port Stephens land. Mr Hillig has applied for summary dismissal of the application in the Worimi proceedings. Worimi, who had previously stated that he did not want legal representation, appeared in person on the first day of hearing of the applications for joinder and summary dismissal. The matter did not proceed on the following day when Worimi notified the Court that morning that he was unwell. I adjourned the hearing. Worimi has now obtained pro bono legal representation and Ms Jowett appears for him in both the joinder and summary dismissal applications. Ms Jowett has only recently been retained and her retainer is, she informs the Court, limited to the present applications. She applied for an adjournment of both applications. This was opposed by Mr Hillig. He points to the length of time the non-claimant proceedings have taken to date and to defects in Worimi's claimant application that he says are so fundamental that they cannot be cured by any further time. It has been accepted by the parties for the purposes of these applications that, if the application for summary dismissal does not succeed, Worimi will be joined to the Hillig proceedings or the claimant and non-claimant applications will need to be heard together. In any event, that will affect the contract for sale of the Port Stephens land that has been executed and awaits completion. The time for completion has passed and the prospective purchasers have, apparently, agreed to await the outcome of these interlocutory applications, but not indefinitely. Mr Hillig is concerned that the purchasers may not proceed and that the creditors of the Land Council will lose the benefit of the contract and the present purchaser if there is further delay. I declined to adjourn the proceedings without an assessment of the prospects of success in Worimi's application for joinder and Mr Hillig's application for summary dismissal. The applications for adjournment, joinder and summary dismissal raise a common issue. The issue is whether Worimi's native title claimant application complies with the Native Title Act 1993 (Cth) ('the Act') or is liable to be struck out pursuant to s 84C of the Act or O 20 r 2 of the Federal Court Rules . After Worimi obtained legal assistance from Ms Jowett, a proposed draft claimant application ('the proposed application') was prepared. As there had been numerous delays and adjournments to accommodate Worimi, Mr Hillig pressed for a hearing. Ms Jowett, who had expended considerable effort in the very limited time in which she had been involved as pro bono counsel, made it clear that the proposed application was incomplete. I decided that the hearing of the joinder and strike-out applications would proceed, taking into account the proposed application. Mr Hillig also proceeded on that basis. This was on the understanding that Worimi would be able to provide the further details and evidence to make good the assertions in the proposed application, in particular assertions of authorisation. Mr Hillig made no submissions on Mr Dates' entitlement to amend the application to change the identity of the claim group as a matter of procedure. Consistent with the observations in Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77 at [22] I will proceed on the basis that there is no procedural impediment to such an amendment. Certain preliminary issues have arisen: the relevance of evidence in the Hillig proceedings that does not go to the existence of native title but does go to the right of Mr Hillig to sell the Port Stephens land; whether Mr Hillig should be joined in the Worimi proceedings; whether the NSW Native Title Services Ltd ('Native Title Services'), the body funded under s 203FE of the Act to perform the functions of a native title representative body for the State of New South Wales under Part 11 of the Act, should be joined in the Worimi proceedings; whether Mr and Mrs Parkinson should have leave to speak or appear for Worimi. Preliminary issues Evidence relevant to the right of Mr Hillig to sell the Port Stephens land The Port Stephens land was granted to the Land Council under s 36 of the ALR Act on 16 March 1998. Mr Hillig was appointed Administrator of the Land Council pursuant to s 222 of the ALR Act on 13 April 2004. The ALR Act provides for procedures whereby land vested in a Local Aboriginal Land Council may be sold. Section 40D(1)(a) provides that a meeting of the Council specifically called for the purpose must be held at which not less than 80 per cent of the members of the Council present and voting have determined that the land is not of cultural significance to Aborigines of the area and should be disposed of. The New South Wales Aboriginal Land Council must approve the proposed disposal (s 40D(1)(b)) and certain Ministers must be notified (s 40D(1)(d)). Worimi sought to adduce evidence about the conduct of the meeting of the Land Council at which the Land Council purported to determine to sell the Port Stephens land and about the approvals required before disposal of the land. To the extent that the evidence was in affidavits, there was no objection. Worimi sought to cross-examine on that subject. On objection, I rejected those questions for form and relevance. The evidence and cross-examination do not go to the existence or otherwise of native title over the Port Stephens land but to the right of the Land Council, through the Administrator, to dispose of the land. That is not within the jurisdiction of this Court. By s 20(2)(b) of the Land and Environment Court Act 1979 (NSW) that court has jurisdiction to review the exercise of a function conferred or imposed by s 40D of the ALR Act. Application by Mr Hillig for joinder in the Worimi proceedings Mr Hillig seeks leave to be joined in the Worimi proceedings. After Worimi obtained pro bono legal assistance, joinder of Mr Hillig to the Worimi proceedings was not opposed. Clearly, Mr Hillig, who represents the holder of the fee simple in the land, should be a party to proceedings in which native title over the land is claimed. I made an order on 28 June 2006 that Mr Hillig be joined as a respondent to the Worimi proceedings. Application by Native Title Services for joinder in the Worimi proceedings Opposition to the application for joinder of Native Title Services to the Worimi proceedings was not pressed. I was satisfied that it is appropriate and made an order accordingly on 28 June 2006. Application by Worimi for Mr and Mrs Parkinson to speak or appear on his behalf Previously I refused an application by Mr and Mrs Parkinson for joinder to the Hillig proceedings on the basis of their ownership of land adjoining the Port Stephens land ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2006] FCA 61). After Worimi obtained pro bono legal assistance, the application for Mr and Mrs Parkinson to speak on his behalf was not pressed. Application by Worimi for joinder in the Hillig proceedings Worimi did not seek to be joined to the Hillig proceedings within the relevant period of notification of the non-claimant proceedings (see [39] below). The original basis for joinder was as the applicant authorised by the women who assert a native title interest. Worimi contends, and the original Form 1 claimant application ('the original application') states, that the Port Stephens land is a sacred site for women, in the context of childbirth. Mr Dates now applies to be joined to the non-claimant application on the basis of a native title interest held by the claim group of the proposed application, that is, himself and his family. Mr Hillig opposes the joinder of Mr Dates in either capacity. In particular he submits that, in order to establish native title, Mr Dates must comply with the requirements of the Act as they apply to a claimant. A claimed existence of native title must meet the requirements of s 61, s 61A and s 62 of the Act which apply to claimant applications ( Kanak v Minister for Land and Water Conservation [2000] FCA 1105 ; (2000) 106 FCR 31 at [11] ). This is not a case of competing claims of native title (cf Kokatha Native Title Claim v South Australia [2005] FCA 836 ; (2005) 143 FCR 544 ). If Worimi has a claim to native title over the Port Stephens land on behalf of a native title claim group, subject to compliance with the Act he would have sufficient interest to be joined to the Hillig proceedings. Mr Hillig contends, however, that if no valid assertion of native title can be made, there can be no reason to join him to those proceedings. It is insufficient for joinder to the non-claimant proceedings that Worimi seeks to prevent the sale of the land ( Hillig at [27]). The identification of the claim group in the original application The original application, filed on 9 February 2006, was prepared before Worimi had legal advice. In the original application the native title claim group is said to be ' the female members of the Garuahgal people who are descended from Mary Mahr born in 1847...being those aboriginal people whose traditional lands and waters are situated in the Port Stephens area of New South Wales '. Worimi asserts that authority to make the claimant application ' was given to me as the Custodian and Protector of the Garuahgal Women '. There are a number of difficulties with the identification of the claim group, which is variously described in the original application and in affidavits filed in support of the application by or on behalf of Worimi as: ' the women of the Worimi nation ' (Attachment R to the original application); ' the Garuahgal women ' (Schedule F to the original application); ' the Garuahgal people ' (Schedule F to the original application); ' the Garuaghal Clan ' (Worimi's affidavit sworn on 20 January 2006). Worimi states in his affidavit sworn on 25 May 2006 that ' the historical research...shows that there were ten clans in the Worimi Nation and the Garuahgal was one of them '; 'the Garuahgal and Maai [a] ngal clans ' (Worimi's affidavit sworn on 25 May 2006). Accordingly, the possible claim group is: the descendants of Mary Mahr; the Garuahgal clan; the Garuaghal and Maaiangal clans; the women of the Garuahgal and Maaiangal clans; the women of the Worimi nation; the Worimi nation. Mr Hillig contends that the claim group has not been properly identified and, as it is not properly constituted, the claim cannot proceed. Mr Hillig refers to McKenzie v State Government of South Australia (2005) 214 ALR 214 and Dieri People v State of South Australia [2003] FCA 187 ; (2003) 127 FCR 364 in support of that proposition. Worimi also states in his affidavit in support of the original application that the Port Stephens land was given to him in 1972 by his father Leonard Dates, a Traditional Elder of the Garuahgal clan. He asserts that, as the eldest son and fifty one years of age, ' by Tribal Law I am a Traditional Elder of the Garuahgal Clan '. Mr Hillig points out that this is mere assertion and that there is no evidence of a normative system. The basis of Worimi's own claim or if, indeed, he is making a claim in his own right is not clear from the original application. Worimi states that ' it was my intention to stand aside and allow the women to take over the application '. Schedule F to the original application is entitled ' General Description of Native Title Rights and Interests Claimed '. It asserts an association of the Garuahgal people with the lands and waters of the application area. These traditions and customs apply to the claim area because the claim area is part of the traditional country of the Garuahgal people. The Claim group are claiming the land as the secret and sacred place for women. According to Worimi's brother, Mr Kelvin Dates, Beryl Dates has never been to the Port Stephens land. There is no evidence of her entitlement pursuant to traditional law or custom to membership of the claim group of the original application or to a right to assert native title rights and interests in the Port Stephens land by reason of her marriage to Leonard Dates. In Attachment E of the original application, it is stated that, under tribal custom, males were not permitted to enter the area used by the Garuahgal women for the birthing of their children. It is also stated that members of the claim group consistently visited the area for the purpose of fishing, telling stories and performing traditional ceremonies and that the applicant and ' other members of the Claim Group claim the right to use and enjoy the area in accordance with the Traditional laws and customs of their ancestors by fishing, gathering and hunting '. Worimi is named as an individual who belongs to the claim group. However, it is clearly made on behalf of the female members of the relevant claim group. That was repeatedly confirmed by Worimi in Court. The matter was before the Court on a number of occasions, including 10 November 2005, 18 November 2005 and 13 June 2006, where Worimi appeared unrepresented. When the identity of the claim group was raised, Worimi was adamant that he appeared on behalf of ' the women ' to ' protect their business rights ' and ' enable the women to lodge a native title claim '. It is apparent that the claim group has not been clearly identified. It is not clear whether Worimi is a member of the claim group, which is inconsistent with the assertion of a site sacred to women. Worimi brings these proceedings as applicant. The persons who make up the native title claim group are, according to the original application, the women who claim to hold the common or group rights and interests. Even if he were duly authorised, he is not a person or person included in the native title claim group as required by s 61(1) of the Act. In addition, the various descriptions of the claim group make its identity and the identity of those who belong to it, uncertain (s 61(4) of the Act). Authorisation by the claim group of the original application Authorisation is said to have been given to Worimi ' as the Custodian and Protector of the Garuahgal Women's Business according to Traditional Law and Custom '. Mr Hillig contends that, if the claim group has not been properly identified, it is not possible for the claim to be authorised in a manner complying with s 61, s 62 and s 251B of the Act. As to the mechanism of authorisation, there is no suggestion that s 251B(a) of the Act, which refers to a process of decision-making under traditional laws and customs, has been complied with. Rather, it would seem that the authorisation asserted in the original application relies on s 251B(b) of the Act. Members were notified by telephone contact and word of mouth regarding the Application. It commences ' we the women of the Worimi Nation claim native title over [the Port Stephens land] on the grounds that it is a secret and sacred place for women '. There is no evidence or suggestion that these 25 women represent the total female members of the Worimi nation. It is apparent and not disputed that there has not been authorisation by all the persons stated in the original application to comprise the claim group. Not only is Worimi's evidence on authorisation insufficient, there is also evidence filed by Mr Hillig that establishes that some women of the Worimi nation and the Maaiangal clan do not authorise the bringing of the claim or the application. A number of the women also deny that any native title or sacred site exists over the Port Stephens land. Ms Jowett concedes that there are deficiencies in the original application with respect to authorisation. The original application is also liable to be struck out on this basis. Procedural history This matter has had a complex procedural history which is worth setting out in summary form. The Hillig proceedings were filed on 31 December 2004 and public notification of them was given pursuant to s 66(3)(a) of the Act on 9 March 2005 . The notification included a statement that any person wishing to be a party to the Hillig proceedings should inform the Court of his or her intention to do so by filing a Form 5 Notice before 8 June 2005 (s 66(10)(c) of the Act). Native Title Services filed a Form 5 Notice with the Court on 28 April 2005. Mr and Mrs Parkinson filed a Form 5 Notice with the Court on 12 May 2005. The first directions hearing in the Hillig proceedings took place on 5 July 2005. A notice of motion to be joined to the Hillig proceedings was filed by Worimi on 23 August 2005. The Hillig proceedings were before the Court for directions on 10 November 2005. Worimi appeared in person and said he did not want legal assistance. The proceedings were adjourned until 18 November 2005 to enable, among other things, Worimi to discuss the matter with Native Title Services. On 18 November 2005, Worimi appeared in person and requested a three month adjournment of the Hillig proceedings. The proceedings were referred to a case management conference before a Registrar of the Court and adjourned to 9 February 2006 for directions. The Court noted that a claimant application was being considered and its progress was to be reported to the Court on that adjourned date. Mr and Mrs Parkinson's motion to be joined to the Hillig proceedings was heard on 13 December 2005. On 9 February 2006, Mr and Mrs Parkinson's application for joinder was dismissed. Worimi filed the original application. In the directions hearing, Worimi appeared unrepresented. Worimi did not attend Court on 4 April 2006. The proceedings were stood over until 27 April 2006 to enable him to be present. On 6 April 2006, Native Title Services filed a motion seeking to be joined to the Worimi proceedings. On 27 April 2006, Mr Hillig foreshadowed his intention to file a motion for summary dismissal of the Worimi proceedings. Worimi appeared in person and asked why the Hillig proceedings could not wait two years to enable him to gather evidence. He also stated, in response to a suggestion that he obtain legal assistance, that he wished to conduct the proceedings himself. All notices of motion were made returnable on 13 June 2006 and Worimi was directed to file and serve any amended application on or before 1 June 2006. On 15 May 2006, Mr Hillig filed a motion to be joined in, and strike out, the Worimi proceedings. On 11 May 2006 and 15 May 2006, Mr Hillig also filed affidavit evidence of members of the Worimi Aboriginal community in support of his motion ('the deponents'). Worimi's evidence on the motions was sent to the Court under cover of a letter dated 29 May 2006. On 13 June 2006, the motions filed in the Worimi proceedings and the Hillig proceedings were heard together. Worimi appeared in person and informed the Court that he required the deponents for cross-examination. The deponents did not live in Sydney. Several deponents attended Court for cross-examination by Worimi on 14 June 2006. That morning, Worimi notified the Court that he was unwell and would not be attending. He did not appear. Both proceedings were adjourned until 26 June 2006. When the matter resumed on 26 June 2006, Worimi was represented by Ms Jowett. Ms Jowett had little time to prepare for the hearing but was aware that any application for an adjournment would be opposed by Mr Hillig. Ms Jowett prepared detailed written submissions on behalf of Worimi. She also indicated to the Court that she did not require the deponents for cross-examination. The proposed application Ms Jowett correctly accepted that the original application was deficient and failed to comply with the Act. She conceded that it was liable to be struck out but opposed such an order on the basis that Worimi should have the opportunity to file a further application. I adjourned the hearing to enable a draft application to be prepared on the understanding that it could not be complete but that it would, at the least, specify the claim group, together with the nature of the authorisation and such authorisation as could be demonstrated in the time available. A proposed application was prepared and tendered on 28 June 2006 as evidence in support of Mr Dates' application for an adjournment to file a further amended claimant application. Authorisation was set out in the terms of s 251B(a) of the Act. There was an absence of facts or evidence to support the assertion of authorisation. Ms Jowett states that she has only had 72 hours in which to take instructions and prepare the proposed application. She submits that that is insufficient opportunity to present that application within the principles enunciated by the Full Court in Bodney . It is not correct to say that Mr Dates has only had 72 hours in which to prepare his application. Some 10 months have passed since he informed the Court of his intention to prepare a claimant application. However, it is only in the last 72 hours that he has had legal representation. I accept that, given time, further elaboration of the basis of authorisation, together with any necessary evidence, could be prepared and filed. If that were the sole defect in the proposed application, I would grant a short adjournment to enable that to happen. However, the proposed application specifies a different claim group, consisting of Mr Dates and his family. If the description of the claim group, as a matter of construction, can not comply with the Act and can not be cured by amendment or further evidence, there is no good reason to grant the adjournment and the application for summary dismissal should succeed. It is necessary to consider the original application as filed, the proposed application and the evidence already filed by Worimi. It is also relevant to consider whether the original application can be amended to substitute the proposed claim group for the original claim group. The determination is to be made on the most favourable view of the evidence adduced by Worimi ( Landers v State of South Australia [2003] FCA 264 ; (2003) 128 FCR 495 at [7] per Mansfield J). The proposition advanced by Mr Wright, counsel for Mr Hillig, is that, on Worimi's own case, the claim group is incapable of meeting the requirements of the Act, either as described in the original application or as described in the proposed application. Ms Jowett put a number of possibilities to the Court in support of the proposed claim group and referred to the nature of evidence that could be adduced in support of those possibilities. I have taken those into account, even though they were only raised as possibilities or possible scenarios. Mr Wright's proposition is that, as a matter of construction, the proposed claim group can not be one that can make the claim, even if, as a sub-group of the original claim group, the members were to authorise Worimi to bring the proposed application. Further, Worimi now makes a claim on his own behalf, a claim that he has expressly negated on previous occasions. The claim group in the proposed application The proposed application is not on behalf of the women of the Worimi nation or the Garuahgal or Maaiangal clans or tribes. It is brought by Worimi (Gary Andrew Dates) on behalf of a claim group consisting of himself, his wife and four daughters. As set out, the '[i] dentification of the native title claimants is through biological descent from the traditional owners of the land comprising the application area and includes people incorporated into the claimant group through adoption, marriage or de facto marriage in accordance with traditional custom and law '. Unlike the original application, there is no claim to native title by reason of biological descent. It would seem from Ms Jowett's submissions that the claim on behalf of the women has not been abandoned. She submits that, although a number of women have filed affidavits that there is no site sacred to women on the Port Stephens land, they simply may not know about it. It may be that the custodians are Mr Dates and his daughters. As it was put by Ms Jowett, Worimi may be the only holder of the knowledge and have the rights and interest in the land. If the proposed application is viewed as an amended original application, it seems to me that the claim group identified in the original application would need to authorise the proposed claim and the proposed amendment. They are the claimants on whose behalf Mr Dates filed the original application. There is no suggestion that notice has been given to them of the proposed amendments. Even accepting that Mr Dates was authorised by the original claim group to bring the application, that authorisation may not extend to an abandonment of their claim by substituting himself and his wife and daughters for the original claim group. What is clear is that the basis for the proposed claim is not only that the Port Stephens land is a site but also that Mr Dates has camped on the Port Stephens land, taken resources from it and hunted and fished on the land. The proposed application formulates a claim that is contradicted by the evidence of the applicant as to the identity of the correct claim group and the nature of the claim. Worimi's affidavit in support of the original application states that he is a direct descendant of Mary Mahr. As the eldest son of Leonard Dates and having reached fifty one years of age, he is an elder of the Garuahgal Clan. His father gave to him all the land between Boat Harbour and Birubi Beach, of which the Port Stephens land is part, for care and safekeeping. His grandmother, Ellen Dates, was the custodian and protector of the secret women's business in Boat Harbour. She told Worimi about the place that was secret and sacred for women. So too did his father, who pointed out the rock that marked the boundary of the secret women's place. Worimi carried on an association with the Port Stephens land and he brings his children to the land. Mr Dates now says in his written submissions that the original application was expressed to have been brought on behalf of Worimi women ' because of his belief in the existence of that site and his need to protect it '. He also contends that he has always maintained that he and his children have inherited traditional rights and interests in the land and that native title rights and interests include communal, group and individual rights and interests. Ms Jowett submits that, prior to obtaining legal and anthropological advice, Mr Dates' views on the identity of the claim group should not be taken into account or used against him. She draws attention to cases where the Court determined the existence of ' cultural blocks ' which were not appreciated by the aboriginal claimants themselves. However, in this case it is not a question of matters not appreciated. Worimi asserts the relevant knowledge and actions and relies upon his evidence. The claim of the family group The application is now clearly brought by Mr Dates on his own behalf and on behalf of his wife and children. They assert individual or group native title rights and interests. It is not the case that the proposed claim group identifies the earlier claim group with more certainty. The intention is to change the persons on whose behalf the application is to be brought (cf Wharton on behalf of the Kooma People v State of Queensland [2003] FCA 1398 at [33] ). Ms Jowett submits that it may be that Mr Dates and, through him his family, have the sole rights arising from biological descent. This submission is made, in part, in response to the evidence of other persons within the claimed biological descent from Mary Mahr and members of the Worimi and Maaiangal clans including Mr Dates' brother, to the effect that no native title existed over the Port Stephens land and that it was not a women's site. Ms Jowett raises the possibility that it was only to Worimi that the relevant interest passed according to custom. It cannot be assumed that any rights and interests now recognised must necessarily be held by all of the living descendants of those who held the rights and interests at sovereignty ( Bodney per Branson J at [31]). A claimant sub-group may be able to establish authorisation by reason of customary law even where a wider group did not authorise the bringing of a claim ( Bodney per Stone J at [90] with whom Spender and Branson JJ agreed). Ms Jowett's submissions are also to the effect that the sub-group represented by the proposed claim group can validly bring the claim even though it is recognised that a larger group may also have the rights and interests. In Mabo v the State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 52, Brennan J acknowledged ' individual, non-proprietary rights that are derived from the community's laws and customs and are dependent on the community title. A fortiori, there can be no impediment to the recognition of individual proprietary rights '. Accordingly, his position was that they were not a sub-group but the whole of the group described in the application as the Ballaruk and Didjarruk people (at [71]). There was contrary evidence from relatives outside the family that constituted the sub-group but Mr Bodney did not have the opportunity to cross-examine them as they were not present in Court. As Branson J said at [31], it was possible that the small group on whose behalf Mr Bodney made his claims was also the whole of the group alleged by him to hold the claimed native title rights and interests. Her Honour declined to form a concluded view as to whether a sub-group of those who are alleged to hold the relevant native title rights and interests are permitted to make a native title application but the claim must, in any event, be authorised by the small group (at [34]). Perry M and Lloyd S, Australian Native Title Law (Lawbook Co, 2003) conclude at [15.1380] that the expression "native title claim group" in s 61(1) of the Act refers to ' the whole group of persons who hold native title over an area and cannot comprise a subgroup which accepts that it is part only of a larger group of native title holders '. A native title claim group may comprise a sub-group of a community that share a set of traditional laws and customs where that sub-group alone possesses rights and interests in the particular area ( Harrington-Smith (on behalf of the Wongatha People) v Western Australia (2003) 197 ALR 138 at [52]---[53]). However, where a small family group or a sub-group is only part of the group who claim to hold native title it is not the group who hold the common or group rights or interests within s 61 of the Act ( Risk v National Native Title Tribunal [2000] FCA 1589 at [60] ; Dieri at [55]; McKenzie at [41]; Landers at [32]---[33]). An exception to this principle was Colbung v Western Australia [2003] FCA 774 where a smaller family group was not included in the larger claim group but claimed particular rights and interests which may not have been established by the larger group. The issue was raised again at first instance by Wilcox J in Bodney v Western Australia [2003] FCA 890 in the context of inappropriate veto rights where not all the members authorise the claim. As Brennan J said in Mabo (No 2) at 60, the interests of members of an indigenous clan or group can be protected, communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs. The origins of the content of the law or custom are to be found in the normative rules of the Aboriginal society that existed before the assertion of sovereignty ( Members of the Yorta Yorta Aboriginal Community v State of Victoria [2002] HCA 58 ; (2002) 214 CLR 422 at [46] per Gleeson CJ and Gummow and Hayne JJ). That inquiry does not concern only the laws and customs which now are acknowledged ( Yorta Yorta at [59]). In Harrington Smith at [52]---[53], Lindgren J observed that it is conceivable that traditional laws and customs may be observed by a wider population, without that wider population being part of the claim group, because rights and interests may be conferred in relation to land covered by the application which are not conferred on the wider population. It is a matter of evidence. Worimi's evidence in support of the original claim group conflicts with the assertion that the proposed native title group hold the rights and interests in the Port Stephens land. Matters relied upon by Mr Hillig Mr Wright acknowledges that the onus is on Mr Hillig to demonstrate that, irrespective of the evidence that Worimi could adduce, there is no realistic prospect of him successfully establishing, within the requirements of the Act, the identity of the claim group and authorisation by the members of the claim group. His submission is that, as a matter of fact, Mr Dates' application has no prospects of success, irrespective of any adjournment to file additional particulars and evidence. Mr Wright points to a number of matters, which can be summarised: The members of the claim group either know who they are or they do not. The claim group now consists of six named persons, said to comprise the totality of the claim group. There is no detail in the proposed application or the evidence to suggest that the proposed claimants represent the entirety of the claim group or that they are the sole holders of the rights and interests in respect of the land. There is no detail in the proposed application to support the proposition that the land is a women's site or that any such rights over the land are specific to the women now named in the claim group. Worimi's assertion that he could be a claimant in respect of the land is inconsistent with the assertion that it is a women's site over which he asserts custodianship. Worimi's evidence is that the women's site encompassed the whole of the Port Stephens land and that the area of the women's site was only identified to men for the purpose of avoidance. That is inconsistent with Worimi's assertion that he camped, hunted and fished on the Port Stephens land. The original application defined the claim group by reference to biological descent from a named ancestor, Mary Mahr. The claim group is now said to be identified through biological descent from the traditional owners, unnamed, and to incorporate people by adoption, marriage or de facto marriage, in accordance with traditional law and custom. The claim group of the proposed application is inconsistent with the claim group of the original application and cannot, therefore, be a sub-group of that original claim group. The generic description of the claim group in the proposed application, through biological descent from the traditional owners and including people by adoption, marriage and de facto marriage must be larger than the six people named. At the least, it would include Mr Dates' brother whose gave affidavit evidence in the proceedings for Mr Hillig. This is not a case of narrowing the numbers of the claim group but of a fundamental change of the characteristic of the group said to arise according to traditional law and custom. An example was given of Beryl Dates senior, Worimi's mother. She was part of the claim group of the original application. The evidence of Worimi's brother is that she identified as a Yorta Yorta person. She married Mr Dates' father and would thereby be included in the claim group of the proposed application by reason of marriage but is excluded from that claim group. Inclusion by reason of biological descent is inconsistent and incompatible with inclusion by reason of marriage or adoption. This inconsistency cannot be resolved or explained by an expert. It must be a fact known to the members of the group. There is no suggestion that the named women or Worimi have rights and interests in the Port Stephens land exclusive to them. There is no description of a process said to found compliance with s 251B(a) of the Act. The proposed amended application simply states the conclusion required by the section. There are a number of difficulties with the proposed application, not least that it is incomplete. The claim group and the basis of the claim by Mr Dates and his family are inconsistent with the application filed by Mr Dates on behalf of the women. There may, theoretically, be a basis for the claim by the proposed claim group but it is not apparent from the proposed application nor the evidence. The claim group of the proposed application is not a sub-group of the claim group of the original application. It does not include all of the persons who hold the common or group rights and interests as required by s 61(1) of the Act. It has not been shown that the proposed claim group alone possesses rights and interests in the Port Stephens land. In each case, all of the persons in the claim group must authorise the making of the application by the named claimant. Authorisation of the claimant application is also a criterion for a ' claimant application ' as defined in s 253A of the Act. A ' native title claim group ' is given a meaning in s 253A of the Act that relates to the native title claim group in s 61(1) which includes a requirement for authorisation. Authorisation for the proposed application is asserted under s 251B(a) of the Act, namely according to traditional laws and customs, authorising ' the most senior and knowledgeable male elder who has native title rights and interests in the application area '. Gary Dates (Worimi) is said to be that person. It cannot be said that the requirements of s 61 and s 251B have been met. The identity of the native title claim group is uncertain. Accordingly, it cannot be said that all the persons who hold the common rights or interests have authorised the bringing of the proposed application. This would be the case even if the procedures under s 251B(a) or (b) have been established, which they have not. Application for summary dismissal Section 84C of the Act provides that an application that does not comply with s 61, 61A or 62 of the Act is liable to be struck out. In Bodney the Full Court considered an application to strike out an application under s 84C of the Act and held that the following considerations apply: The power summarily to dismiss should be exercised only where the claim as expressed in untenable and upon the version of the evidence favourable to the applicant (at [11] per Spender J approving Mansfield J in Landers at [7]). The Court should not generally undertake any weighing of conflicting evidence or of the inferences to be drawn from such evidence (at [11] citing Landers at [7]). It is not for Worimi to establish that he was authorised but for Mr Hillig to establish a clear case of lack of authorisation (at [27] per Branson J). Section 84C is concerned with matters of form and authority, not with the merit of any native title determination (at [33] per Branson J). An application to strike out an application under s 84C must be considered before any further proceedings take place in relation to the main application (at [38] per Stone J). Strike out applications under s 84C should be approached in the same way as applications for summary dismissal under O 20 r 2 of the Federal Court Rules (at [50] per Stone J). Evidence may be relied upon to support the strike-out application (at [52] per Stone J). If evidence were to establish unequivocally that an applicant had not been authorised by the native title claim group then summary dismissal of an application may be justified (at [52] per Stone J). The original application should be struck out and summarily dismissed. The proposed application is also liable to be struck out because of the present state of the evidence and the form of the proposed application. The inconsistencies between the proposed claim group and the original claim group, based upon the evidence of Worimi, a member of the proposed claim group, would seem unanswerable. On that evidence, the proposed claim group does not include all of the persons who hold the common or group rights and interests comprising the native title claimed. That is so even if authorisation by the proposed claim group can be established for the purposes of the Act. The application for an adjournment I do not find determinative at this stage the failure to include in the proposed application evidence of traditional laws and customs of authorisation. I am prepared to accept, for the purposes of this hearing, that such evidence or particularisation could be included to support the conclusion as presently framed. If, when the proposed application were finalised, Mr Hillig formed the view that authorisation was not established, an application could be made at that stage to strike out Mr Dates' application. In other words, if authorisation were the only issue, Worimi should be given the opportunity to include in the proposed application or otherwise to establish the authorisation as required by s 251B(a) of the Act. Even if that did not eventuate, as the claim group consists of Worimi's immediate family, it would seem likely that he would be able to establish authorisation under s 251B(b) of the Act. I accept the prejudice to Mr Hillig and the Land Council in the delay and possible loss of the opportunity to sell the land. I accept that such a delay and loss affects not only the Land Council but also its creditors. Despite the urgency pressed on the Court by Mr Hillig, the hearing of the Hillig application has been delayed to enable Mr Dates to obtain evidence in support of his claimant application. On the other hand, summary dismissal of the Worimi proceedings and refusal of the application by Mr Dates to be joined to the Hillig proceedings deprives Worimi, on behalf of the proposed claim group, the opportunity to establish native title over the Port Stephens land, which will otherwise be sold if Mr Hillig obtains the orders sought in the Hillig proceedings. Mr Dates submits that he should be given an opportunity to amend the original application or to file a fresh claimant application to cure the defects. He submits that this will involve ' a significant period of time ' in which to apply for funding and to prepare the application for hearing. That, however, does not answer Mr Wright's main point concerning the identity of the claim group. As noted by Branson J in Bodney at [33], s 84C of the Act is concerned with matters of form and authority and not with merit of any native title determination application. Mr Wright's submission is that the proposed application is liable to be struck out pursuant to s 84C of the Act by reason of two fatal inconsistencies concerning the claim group. The first is that, in the proposed application, the description of the claim group in terms of biological descent coupled with the addition of marriage and adoption is inconsistent with a total claim group of the six members of Mr Dates' family, being Mr Dates, his wife and four daughters. The second is the inconsistency between the claim group as described in the original application (the women) and as to which evidence was directed and the claim group as described in the proposed application (Mr Dates and his family). Mr Wright accepts that the only basis for a refusal of the application for an adjournment is if there is no way in which the proposed application can succeed. That is, it is not a question of evidence that could be adduced but has not yet been filed. Ms Jowett points to the range and complexity of evidence usually required in native title cases. She submits that Mr Dates should be given every opportunity to present his evidence and that the claimant application is ' nowhere near ready for hearing '. She also submits that it would be unrealistic to expect an unrepresented indigenous litigant to be in a position to prove the existence of native title rights and interests without first providing him with sufficient time to obtain funding and gather relevant evidence. Although Worimi requested on a number of occasions that the Hillig proceedings be adjourned to enable him to obtain legal assistance, he also repeatedly stated in Court that he did not wish to receive legal or expert advice. Native Title Services has informed the Court that the assistance it has endeavoured to provide Mr Dates has not been accepted. Indeed, Mr Dates confirmed in Court that he does not want their support. This should be taken into account, as a matter of discretion, on the adjournment application. The proceedings were commenced on 31 December 2004. Mr Hillig's primary evidence on the non-claimant application was filed by 19 July 2005. Since that time, Worimi has sought and been granted adjournments to enable him to prepare his claimant application and evidence. In the present case, members of the claim group as described in the original application have stated that they do not authorise Mr Dates to bring the application. Even if the named members of the claim group in the proposed application do authorise him to bring the application, the claim group does not include all the persons who come within the claim description. Even if, by traditional law and custom, the native title interests passed only to Mr Dates from his father, Mr Dates' mother is within the claim group description and has not authorised the application. I have already determined that the original application should be struck out. For the reasons given, including the inconsistencies in the claim groups of the original and proposed applications, and the extent of authorisation of the proposed claim group, it is not appropriate to permit Mr Dates to file the proposed application as an amended original application. I accept that Mr Dates should be given the opportunity to present his case. Ms Jowett has stated that she cannot appear beyond this application and does not have the resources to do so. I propose to give Mr Dates yet another opportunity. I wish to make it clear, however, that the Court cannot continue to defer the hearing of cases on the basis of unsupported requests for further time to adduce evidence. This is particularly relevant where there is evidence of detriment to Mr Hillig and creditors of the Land Council, where the delay continues. It has been almost 12 months since Mr Dates applied to be joined to the Hillig proceedings. I also note that, at the conclusion of the hearing of these applications, I indicated that I would reserve my decision and that this meant that there would, as a practical matter, be further time in which Mr Dates could file additional evidence. None has been filed. I propose to direct that Mr Dates file any further claimant application within 14 days. Any such application must include, in accordance with the requirements of the Act, the proper identification of, and authorisation by, the claim group, the connection between the claim group and the relevant traditional laws and customs observed, and the basis for the claim by that claim group from the time of sovereignty. I also propose to direct that Mr Dates file any evidence, as to the identity of the claim group and authorisation, on which he wishes to rely in his application for joinder. I will give the parties the opportunity to make submissions as to the time for this to occur but my present intention is to allow a further 14 days for the evidence. Abuse of process Mr Hillig submits that Worimi's application is an abuse of process. He contends that the evidence demonstrates that the purpose of the application is to prevent the sale of the land by Mr Hillig and to ventilate complaints about the conduct of the Land Council. He also points to the continuing involvement of Mr and Mrs Parkinson and their desire to prevent the sale of the land for the collateral purpose of preventing future development of land that adjoins their own. He submits that, as an abuse of process, the Worimi proceedings should be dismissed. I do not accept, on the evidence before me, that the Worimi proceedings are an abuse of process. It is the case that there is evidence of the continuing involvement of Mr and Mrs Parkinson. However, there is also evidence from Mr Dates of his independent concern for the Port Stephens land and his claim to native title and for the women whom he has asserted have an interest in the land. In the context of a non-claimant application for a declaration that no native title exists over the land, Mr Dates' application under the Act and his application to be joined to the Hillig application does not, of itself, constitute an abuse of process, whether or not his concern is to prevent the sale of the land. Conclusion The original application should be struck out. Mr Dates should have 14 days in which to file and serve any claimant application and a further 14 days to file and serve any evidence in support of his application for joinder. Mr Dates' application for joinder to the non-claimant application should be stood over to consider any further claimant application and any evidence or application in relation to it. The non-claimant application will be heard on the same day. I will hear from the parties before making orders.

application to strike out claimant application claim group unclear applicant not a member of claim group applicant not authorised by all members of claim group application for adjournment to change claim group fundamental difference between original and proposed amended claim group notice of intention to amend claim group not given to members of original claim group amended claim group not the totality of persons within claim group description not appropriate for leave to amend application application struck out application for joinder to non-claimant application adjourned to allow new claimant application to be filed native title practice and procedure

The Federal Magistrate dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) handed down 21 February 2008, by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (Minister) not to grant the appellant a Protection (Class XA) visa. He applied for a protection visa on 13 July 2007 pursuant to the Migration Act 1958 (Cth) (the Act). In his application the appellant said he had left Pakistan "because I fear I will be harmed if I return to Pakistan". In answer to a question about what he feared, the appellant stated: "I fear that I will be killed or otherwise harmed". He supported his application with a statutory declaration setting out his circumstances and the basis of the fear he claimed. The appellant stated he was a resident and lived in a village of Swat, in the North West Frontier Province (NWFP). He said he lived in a village which included followers of the imprisoned religious cleric and leader of the Tehreek-e-Nafaz-e-Shariat-Mohammadi group (TNSM). He stated that TNSM is a fundamentalist militant Islamist Wahabi group seeking the imposition of Sharia Law in Pakistan. He further stated the group has links with the Taliban in Afghanistan and that its power in the NWFP is growing alarmingly. In essence, the appellant explained in his statutory declaration that, following her divorce, he married a woman in Pakistan who had earlier been married at the age of 12 or 13 according to Islamic law to a man who subsequently went to Italy and raised a new family. Soon after the appellant's marriage to her, her former husband returned to Pakistan, denied the legitimacy of the divorce of the appellant's new wife and declared that she remain his wife. Subsequently, a religious scholar connected to the TNSM denounced the appellant's marriage during a radio station broadcast stating that the divorce was invalid and the union was against Sharia Law and, because it was against the religion, both the appellant and his wife deserved to be killed. (In later proceedings and later in these reasons this is referred to as the 'fatwa'). The appellant stated in his statutory declaration that a fundamentalist view of the Muslim religion is taken in the NWFP and it was his belief that the religious authorities wanted to make an example of him and his wife. On this afternoon my cousin drove me, my wife and my mother to my mother's medical appointment. We were travelling about 3 kilometres from home, on the road between ... when 6 armed gunmen on either side of the road opened fire on us. This was at about 5.45pm. The back and side windows were shattered by gunfire. My mother and my wife were in the back seat. They crouched low and were not struck by any bullets. By the grace of God, my cousin ... and I also avoided injury. We drove into ... police station and made a report to the police. Of the six men involved only one was detected and detained. However, he was released by police after seven days. He then joined a ship and left Pakistan some months later. However, a week before he left the brother of his wife came to Karachi and took her back to Swat. The appellant stated in his statutory declaration that she had since moved from place to place. He expressed fear for his wife's life and his own, should he have to return to Pakistan. The appellant stated in his statutory declaration that he was certain that if he returned to Pakistan he would be tracked down and killed by the followers of TNSM. The appellant further stated that the then recent siege in the Red Mosque in Islamabad testified to the wide influence of these "extremist religious groups". The appellant, who engaged a solicitor/migration agent to assist him, supplemented his application for a protection visa with other information provided by his agent. The Minister's delegate in considering the application acknowledged that TNSM activity is high in the Swat region but ultimately found that the applicant did not have a genuine fear of harm, and that there was not a real chance of persecution occurring should he return to Pakistan. The delegate therefore found that the appellant's fear of persecution as defined under the Refugees Convention was not well founded. The delegate noted the appellant had failed to produce any documents corroborating his claim. The delegate also considered there was sufficient State protection for the appellant and that he could relocate to another, safer area of Pakistan, free from TNSM influence, in any event. In material respects the Minister's delegate found that the appellant's claims had not been substantiated and lacked credibility. The appellant, through his agent, provided the Tribunal with a range of material that had not been given to the Minister's delegate, including the following: The agent in a covering letter submitted that the materials provided dealt with credibility issues raised by the Minister's delegate. The agent also submitted there was a demonstrable lack of State protection, notwithstanding the banning of the TNSM by the Pakistani government. The submission noted that the membership of the group had increased despite it having been proscribed. This explains the travel alerts issued by western governments, including the Australian government warning against travelling to Pakistan. It explains the abductions and killings that have taken place in and outside the Swat valley allegedly by terrorist groups including the TNSM. It is disturbing that those who are perhaps most counted as victims of the more recent violence are members of the Pakistani security forces deployed to the NWFP to try to restore some authority in the region. On the contrary, his fear is that he will be the victim of a specific, targeted attack because he is viewed as having entered into a blasphemous marriage. The Tribunal held a hearing to which the appellant was invited and later affirmed the Minister's delegate's decision. In the Tribunal's reasons for its decision to affirm the Minister's delegate's decision, the Tribunal noted that a person's fear of persecution for a Convention reason must be "well-founded fear", which adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a well-founded fear if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it, but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of a persecution occurring is well below 50%. The Tribunal drew these principles from a number of authorities, including Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1. The Tribunal then noted the claims and evidence provided by and on behalf of the appellant to the Tribunal. In particular, it noted that the appellant claimed to be unable to relocate to another part of Pakistan because the TNSM has the capacity to find him anywhere and that there is a demonstrable lack of State protection notwithstanding the banning of the TNSM by the Pakistani government. The Tribunal also noted the appellant's claims that his fear was not one of being the victim of any random act, but that he would be victim of a specific targeted attack, because he is viewed as having entered into a blasphemous marriage. The Tribunal noted country information concerning the TNSM, that the primary objective of the TNSM is the imposition of shariat in Pakistan, and ideologically it is dedicated to transforming Pakistan into a Taliban style of state. The country information also indicated the TNSM operates primarily in the tribal belt such as in Swat and the adjoining districts of the NWFP. The country information further stated that, although established in the NWFP, the TNSM has had only limited success in expanding its activities beyond the tribal areas of the province. The Tribunal also noted information concerning divorce in NWFP including if a woman has been deserted by her husband for four years, or if the husband has failed to maintain her for two years. The Tribunal set out much detailed information from newspapers concerning fighting in the Swat district. The Tribunal recorded the answers to a number of questions put to the appellant about matters set out in his written statement. One line of questioning concerned the return of his wife's former husband to Pakistan. Another line of questioning concerned why the appellant had left his wife behind in Pakistan when it appeared from his account that it was his wife who was in the most danger. It appears that in response to this question the appellant claimed that the fatwa issued by the religious scholar during the radio broadcast was also against him. The Tribunal pressed the appellant as to why he did not try to obtain travel documents for his wife. The appellant claimed that it was not easy to do so because they had kept all of their documents in Swat and they had to apply for a passport from Karachi. He also repeated that his wife's brother came to Karachi about a week before he departed and took her back to Swat. The Tribunal put to the applicant that if they did have such a fear then they would do everything possible to arrange for her travel documents but instead she returned to Swat where she feared she would be killed. The applicant claimed that his wife was in hiding and remained in the house and people would not know she was there. The Tribunal suggested that once she went into labour and had the baby that people in the village would know that she had returned. Given that they claimed to live in the same village ... it appeared that her return put her in grave danger. The applicant claimed that his sister was living with his wife and would assist in the birth so no one would know. The Tribunal put to the applicant that it found it hard to believe that a birth could be kept secret from such a small community. The Tribunal put to the applicant that it appeared pointless issuing a fatwa against someone who could apparently hide so easily from the person that issued it. The applicant claimed that whilst males have to work and go outside, it's easier for women to remain at home. He claimed his wife was not staying in ... at the moment, but would stay with his sister ... . The Tribunal also put to the appellant that his wife appeared to be living in Swat unmolested and safe. It appears the appellant responded by saying he would be unable to live in Swat because the TNSM would be looking for him. The Tribunal put to the appellant that the State was not required to "guarantee" his protection against random acts of violence and even if he was targeted by the TNSM the Tribunal was not satisfied that it was unreasonable for him to relocate to Karachi. The Tribunal put to the appellant that the State appeared willing and able to protect him as they had acted to provide him with protection in the past. To this the appellant appears to have claimed that his life was still continuously in danger. The Tribunal also asked the appellant to go through the documents he had provided to it. The Tribunal asked the appellant to explain the significance of a particular document from the organisation mentioned above. The appellant had apparently claimed that he was not there himself but in Karachi when the organisation met to make the jirga, which was confirmation of the appellant's wife's proper divorce from her former husband. The Tribunal put to the appellant that the document appeared to be a record of the events that he had described and asked if the events were witnessed by members of the organisation or if they recorded information that he had given them. He claimed that his uncle gave the members of the organisation information and other information was obtained by members of the organisation themselves. He claimed that members of the organisation went to families on both sides (his wife and her former husband) to get information. The Tribunal also asked the appellant who comprised the organisation which made the jirga. Because the document from the organisation was dated a year after the apparent meeting of the organisation which made the jirga, the Tribunal put to the appellant that it had concerns about the document. The Tribunal stated in its reasons that it had attempted to contact the organisation by telephone to confirm the veracity of the document but was unable to get through. The appellant explained that areas of Swat had been evacuated by Pakistani forces because of fighting with the TNSM and other Islamist extremists. The Tribunal put to the appellant some other concerns it had to the effect that the fact that there is violence and persecution in the NWFP is not sufficient to find that he is a refugee. It also asked the appellant if he wanted more time to respond to the issues and concerns put to him. However, he said he had put everything that he wanted to say and did not need any more time. After the hearing was conducted, the Tribunal evidently entertained concerns about the reliability of the information supplied by the organisation about the jirga and generally about the fatwa and so placed a request to the Australian Embassy in Islamabad seeking additional information. The written request for information made of the Embassy by the Tribunal was in the following terms: The RRT [the Tribunal] would be grateful for the post's assistance in providing answers to the following (if possible, please also detail the nature of the sources consulted in forming this response): Is it possible to confirm the existence of an organisation in the Swat village ... Attempts to contact the [organisation] from Australia have been unsuccessful, possibly due to the fact that much of Swat has been evacuated as a consequence of the current fighting in the Swat district. If it is possible to contact the [organisation], please ask the [organisation] to confirm that the elders of the village issue (sic) a jirga ruling declaring that the divorce of [the wife and her former husband] was legal and correct ... Please also enquire as to who was in attendance at the jirga and whether the applicant ... is known to the [organisation]. Can the post please provide advice on whether [the religious scholar] has been known to issue fatwas against people in breach of Sharia law (such as perceived adultery)? Is [the religious scholar] known to specifically name offenders in this regard? And are [the religious scholar's] fatwas honoured? If the post can provide advice in this regard, would it also be possible for the post to provide supporting information as to how this advice was obtained and how the post can be sure that the advice is correct? NB: DFAT Report 698 ... advised that '[the religious scholar] is not known to name and threaten specific individuals for opposing TNSM in his radio broadcasts' (DFAT Report 698 provided no details as to the nature of the source or authority upon which this advice was based). Mr ... is the secretary ... The ... office is located at ... in Swat and was established in 1979. Mr ... confirmed that the email address, telephone number and registration number for the ... listed ... are accurate, however the telephone is currently not functioning. The following people were present at the September 2007 jirga: .... Mr ... confirmed the identity of [the appellant] who is the son of ..., both of whom are residents of ..., Swat. ] There is conflicting advice as to whether or not [the religious scholar] has issued fatwas against individuals for breaches of sharia law. [2. ] Mr ... did not personally hear [the religious scholar's] fatwa against the divorce and his call for the couple to be killed for adultery. [3. ] However, in January 2007 Mr ... was advised of the fatwa by [the wife's former husband's family]. [4. ] Other associates of Mr ... are also aware of [the religious scholar's] ruling. [5. ] More broadly, Mr ... said that [the religious scholar] has been ruling against individuals who breach sharia law (who are specifically named in the fatwas). [6. ] Further attempts to contact Mr ... to obtain contact details for those who have heard fatwas issued against individuals have proved unsuccessful. ] An earlier RRT enquiry ... addressed the question of whether [the religious scholar] names and threatens specific individuals on the radio when issuing fatwas. [8. ] In that enquiry we spoke with Mr ..., ... police station who said that he had not heard [the religious scholar] issue fatwas over the radio against individuals for breach of sharia law. [9. ] Recent attempts to contact Mr ... through the ... police station to follow up on this issue have proved unsuccessful (there is currently a curfew and military activity in Kabal and its surrounds). Whether ... had issued a fatwa against the applicant and his wife on the radio and whether his fatwas were generally honoured. The Tribunal considered the documents and country information provided by the appellant and noted that the country information details the generalised instability in the NWFP and Swat in particular although it did not refer to the appellant or his wife's situation or to the issuance of fatwas. The Tribunal noted that the documents relating to the appellant's marriage to his wife and his wife's previous marriage (provided to the Tribunal) did not in themselves provide corroborative evidence of his claims of persecution as a result of that marriage. However, the Tribunal accepted that a police report it had received and the organisation's jirga supported the appellant's account of the fatwa against him and his wife and the attacks upon them both by his wife's ex-husband and his family. However, it is not clear to the Tribunal if the fatwa was made by [the religious scholar] or by the family of the applicant's wife's ex-husband, or how determined the family or [the religious scholar] and TNSM is to execute such a fatwa. Be that as it may, the applicant's fear can be seen as two fold; (i) fear of persecution by TNSM for the imposition Sharia law, including entering a blasphemous marriage; and (ii) fear of harm from the applicant's wife's family. The applicant has given evidence and the ... organisation has confirmed his evidence that he and his family were attacked by the applicant's wife's ex-husband and members of his family. Notwithstanding this, the applicant's wife remains living in the area apparently unmolested. The applicant claims it is because she moves around and remains in hiding inside the home, however the Tribunal does not accept such an explanation. It seems to the Tribunal that it would not be possible to escape such a fatwa by simply remaining inside the house. The applicant further claims that the fatwa will remain in effect regardless of where they live in Pakistan because the TNSM is everywhere. However, if the fatwa has not been executed in their home province where the TNSM has a major presence, it seems to the Tribunal that the couple could safely relocate to another part of Pakistan where their reach does not appear to extend. The Tribunal concluded its findings by stating that if the appellant returned to Pakistan now or in the reasonably foreseeable future there was no real chance that he would face persecution because of his race, religion, membership of a particular social group, nationality or political opinion, imputed or otherwise, or for any other reason. Based on all of this and having considered the appellant's claims individually and cumulatively, the Tribunal found he did not have a well-founded fear of persecution within the meaning of the Convention. The decision was not made according to the Migration Act 1958 . 2. The decision was made contrary to the definition of refugee Convention. An amended application advanced two further grounds for review, as follows: The second respondent in making its determination failed to record its decision in accordance with section 430 of the Migration Act . The decision of the second respondent is affected by jurisdictional error in that the second respondent failed to consider the applicant's claim that he feared persecution on the basis that the fatwa still in force against him as the TNSM was not part of the council's decision, he will be tracked down and killed by the followers of TNSM who annihilate people they perceive to be enemies of Islam with impunity. In written submissions filed in support of the application for judicial review, the appellant raised a number of other claimed errors, which the Federal Magistrate dismissed at [85] --- [109]. The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act. However, on 30 October 2009 the appellant filed an amended notice of appeal with his outline of submissions in support of the appeal. At the hearing of the appeal, counsel for the appellant said the finding of the Tribunal concerning state protection was intended by him also to be challenged by ground 2. The appeal was effectively argued on that basis. It set out in its decision a summary of the request made and the information received. The appellant says that while the Tribunal accepted that a fatwa remained in effect against the appellant and his wife for their apparently "blasphemous marriage", it expressed doubts and concerns about who had made the fatwa and whether there was any serious prospect it would be carried out. The appellant says that it can be reasonably inferred that the source of the Tribunal's doubts, was, in part, its reliance upon this further information from the Australian Embassy. The appellant says that he was not advised that the Tribunal intended to make or had made this further inquiry of the Australian Embassy or that the Embassy had provided information in response and was not given the particulars of the information. The information was specifically about him. On the face of it, therefore, in not seeking the appellant's comments upon this information, the Tribunal denied him procedural fairness as codified by s 424A or, alternatively, in the more general sense identified by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 . The appellant contends that, although the Tribunal had exhibited some scepticism concerning the wife's ability to avoid execution of a fatwa by simply hiding indoors, it did not communicate its doubts concerning the keenness of the wife's ex-husband's family, the maker of the fatwa --- the religious scholar - or the TNSM to execute the fatwa. The Tribunal specifically asked the Embassy about this issue, but does not appear to have received a specific response as to whether fatwas issued by the maker of the fatwa alleged here, were honoured. However, information is provided that the appellant and his wife were the subjects of a fatwa. The Embassy's attempts to further contact its named source and obtain further information were unsuccessful. The appellant contends that this fact at least should have been communicated to the appellant to afford him the opportunity to make further inquiries and, if necessary, adduce information or make further submissions on the point. The appellant submits that the seriousness of the fatwa and the ability of his wife's ex-husband's family or the followers of the TNSM to execute it outside the NWFP goes to the heart of the issues of whether there exists a "real chance" of persecution, and whether the appellant can reasonably relocate within Pakistan or the State can provide him with reasonable protection. Counsel for the appellant refers to the decision of the Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 ; (2009) 238 CLR 489 and notes that where additional information has been obtained under s 424(1) there is no mandatory requirement for the Tribunal to comply with subs (2) and (3). However, the High Court in SZKTI and also in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 177 FCR 1 regarded the provision of procedural fairness, including compliance with s 424A as necessary with regard to additional information sought under s 424(1): see for example SZKTI at [38] and [51] where there was no breach of the obligation; and SZLPO v Minister for Immigration and Citizenship (No 2) [2009] FCAFC 60 ; (2009) 177 FCR 29 where there was a breach. Minister's submissions: Counsel for the Minister on the other hand submits that the first ground of appeal is misconceived. On behalf of the Minister, counsel submits that, by virtue of s 422B(1) of the Act, Div 4 of Pt 7 of the Act provides a comprehensive procedural code in respect of the content of the natural justice hearing rule that applies to the decision under review. There are no relevant procedural fairness obligations outside those provided for in this division: see VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562 at 568-570, [22] - [31] , Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 ; (2006) 151 FCR 214 at 225-226, [60] - [70] ; SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 ; (2009) 177 FCR 555 at [49] - [50] . Counsel for the Minister submits that, in any event, there is no principle of common law procedural fairness that requires disclosure of any and all "information" obtained by a decision-maker that may be relevant to the decision. The hearing rule at common law imposes an obligation in terms that are more narrow, that is to say, a person affected by a proposed decision is entitled to be made aware of information available to the decision-maker that is adverse, credible, relevant, and is of significance to the decision, so that he or she can make submissions and rebut, qualify and/or comment on any such information: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 628-629. In this case counsel submits that no such adverse information has been identified by the appellant either in his ground of appeal, or in the submissions supporting the appeal. Insofar as the appellant alleges failure to provide procedural fairness pursuant to s 424A , the Minister submits that the obligation imposed applies only to "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review": see s 424A(1)(a). The Minister submits the appellant did not identify, nor attempted to identify the "information" that would meet this description. The appellant simply asserts that it can be reasonably inferred that the source of the Tribunal's doubts was, in part, its reliance upon this further information obtained from the Australian Embassy. The Minister submits this approach is misconceived. In order to establish a relevant obligation, the appellant is required to identify information which, in its own terms, contains a "rejection or undermining" of the appellant's claim to be a person to whom Australia owed protection obligations: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 235 ALR 609 at 615, [17] . In the absence of such information being identified, no duty arises under s 424A(1) of the Act. Counsel further submits on behalf of the Minister that the appellant appears to complain that the Tribunal did not inform the appellant of its continued doubts concerning the extent of the threat posed to the applicant as a consequence of the fatwa. In so doing, the appellant appears to assert, at least indirectly, some obligation on the part of the Tribunal to disclose to the appellant its reasoning processes, something not required by s 424A of the Act. Counsel for the Minister submits that the approach taken by the Tribunal in its decision should be the subject of a different interpretation from that provided on behalf of the appellant. Ultimately what happened was that the Tribunal was given a particular history central to which was a claim that the appellant as well as his wife were fearful of harm in Pakistan and in particular that they lived in fear in Pakistan because of a fatwa, that is, the Swat area because of the fatwa. The appellant's claim indicated that the primary object of the fatwa was his wife and that was a matter that was explored during the hearing in a number of places. What the Tribunal does in its reasons is indicate that certain aspects of the fatwa are not entirely clear to it, but the real reason why the Tribunal then goes on and makes the relocation finding in the terms that it does, follows from there on. The Tribunal rejected the appellant's explanation that she is able to do this because she remains hiding inside the home. Accordingly, counsel for the Minister says the Tribunal took the approach of accepting that there was a fatwa, accepted that there was some risk of harm in the Swat Valley but, despite that risk of harm, no harm actually came to the appellant's wife who is the principal target of the fatwa. Accordingly, counsel for the Minister submits that the Tribunal proceeded on the basis that it accepted the existence of a fatwa but found that, despite the existence of a fatwa, the wife of the appellant had not been harmed, but not because she remained in hiding. Appellant's submissions in reply: In reply, counsel for the appellant submitted that it was all very well for the Tribunal to have accepted that there was a fatwa, but to then go on to say, in effect, the strength of the fatwa can be assessed by looking at the extent to which the wife had been able to escape it, was objectionable. Counsel submitted that this conclusion about the relative weakness of the fatwa was clearly affected by the information which was provided to the Tribunal after the hearing. Counsel for the appellant also submitted that for the purposes of s 424A of the Act, the relevant "information" that should have been put to the appellant for his further comment, and which was relied upon by the Tribunal in whole or in part in making its decision, is to be identified by reference to the summary given by the Tribunal of the information it received from the Australian Embassy. The second dot point setting out the response of the Australian Embassy, counsel submitted, comprises three elements: The identity of the person who issued the fatwa. Whether it was broadcast over the radio. Whether fatwas were generally honoured. Consideration: The appellant complains that, by the Tribunal going off and making independent inquiries through DFAT of the Australian Embassy in Pakistan and failing to give the appellant the opportunity to comment on the information supplied before it made its decision to affirm the Minister's delegate's decision to refuse to grant him a protection visa, he was denied the procedural fairness mandated by s 424A of the Act or "in the more general sense identified by the High Court in SZBEL ". It is accepted all round that it is to the Act that one must primarily turn to find or define the Tribunal's obligations to act fairly or provide procedural fairness. This is because, in the area of migration law in Australia, the Act has delimited the ordinary grounds of judicial review of administrative action that otherwise apply in most spheres of official decision-making in Australia. Heerey J in VXDC set out some of the history of the legislative acts by which this position has been arrived at (see [22] --- [31]). (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. Earlier, in Miah the High Court by a majority found that the Act did not exclude the application of the common law rules of natural justice to the Minister or the Minister's delegate. The Minister's delegate was found to have failed to accord the applicant natural justice by not informing the applicant of substantial new material on which the delegate relied in making his decision and by not giving him an opportunity to respond to the material. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity. Astute readers will notice the term 'exhaust' is picked up from the majority judgments and included in the Statement and Speech, as well as in the amendments themselves. Section 422B is therefore an illustration of the "contrary intention" that controls the amplitude of the duty to act fairly or to accord procedural fairness that otherwise ordinarily attends the making of administrative decisions pursuant to statute: see, for example, Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 584 per Mason J. Accordingly, while s 422B(3) requires the Tribunal to "act in a way that is fair and just", this is not a general prescription but one that is to be understood in context; it applies "in applying this Division". In other words, it applies only when applying Div 4 as affected by s 422B(1) and (2). It has been held accordingly that s 422B(3) is not of itself a source of a broad duty to act fairly or accord procedural fairness that reflects the common law duty: see Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 ; (2009) 257 ALR 427. Cases like SZBEL and SZBYR however, show that the provisions of Div 4 have not removed, indeed were not intended exhaustively to remove the procedural rights of an applicant to a fair hearing or to have accorded to him or her procedural fairness in the conduct of the hearing in the Tribunal. Rather, Div 4 is the source of specific statutory hearing rights. In SZBEL , at [27] the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) emphasised the obligation of the Tribunal under s 425(1) of the Act to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review " (emphasis added). The Court held that in the absence of steps taken by the Tribunal to notify an applicant to the contrary, he or she was entitled to assume that the issues considered dispositive by the Minister's delegate were the issues which arose in relation to the decision under review. If the Tribunal should be inclined to reach its decision by reference to an issue other than those considered dispositive by the delegate, a failure to notify the applicant would be a denial of procedural fairness. In that case, the Court considered the Tribunal's decision should be quashed. More recently, the High Court in SZKTI , in clarifying the nature of the competing powers of the Tribunal under s 424(1) and (2) to obtain information, again emphasised the central importance to the conduct of a hearing by the Tribunal of the obligation created by s 425. The Court (French CJ, Heydon, Crennan, Keifel and Bell JJ), indicated that in cases where the Tribunal goes off on its own and obtains further information, an obligation may arise under s 425 to conduct a second or further hearing. Matters may arise requiring an invitation to a further hearing. Here Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL. The extant issue was whether the first respondent had been an active Christian in China. Mr Cheah's knowledge of the first respondent's past activities in China deriving from any account given to him by the first respondent was directly related to that issue. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah's information by responding (as he did) to the letter from the RRT conforming with s 424A. It would neither be necessary nor appropriate to now foreclose that possibility. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. The fact that in SZKTI , the Court at [51] merely stated that s 422B of the Act "suggests" that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4, would also appear to leave open the possibility that there may be such a requirement. However, in the case before me counsel for the appellant limits his contentions to the denial of the procedural fairness the appellant was entitled to under s 424A, or in a more general sense as identified by the High Court in SZBEL. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. Under s 424A the Tribunal must give an applicant clear particulars of any information that the Tribunal considers will be the reason, or a part of the reason, for affirming a decision under review; and ensure that the applicant understands why it is relevant to the review and the consequences of it being relied upon in affirming the decision that is under review; and, importantly, invite the applicant to comment on or respond to it. The appellant bases his case primarily on the obligation of the Tribunal under s 424A to provide clear particulars of any information that the Tribunal considers will be the reason, or part of the reason, for affirming the decision that is under review and inviting him to comment and respond to that information. By focusing the argument in this way it is not necessary to undertake an analysis of whether a further hearing is required under s 425 by reference to the "newness" or "additional" features of the information provided, as mentioned in SZKTI . Rather, the question is whether the information obtained by the Tribunal was a reason or part of the reason for the Tribunal's decision for affirming the delegate's decision, a narrower question perhaps. The plain command of s 424A(2) is that the Tribunal must invite in writing an applicant's comment and response if it is possessed of information of this character: SZBYR at [14]. So understood, certain things should be noticed about s 424A. First, unlike the common law test of procedural fairness in relation to information held by a decision-maker but not shared by the decision-maker with a person affected, the specific duty created by s 424A does not depend (subject to what is said below) on the applicant showing that the information was adverse to his or her interests and credible, relevant and significant to the decision to be made, this being the well recognised common law test in such cases and stated, for example, by Brennan J in Kioa v West at 628 --- 629. However, as the joint judgment in SZBYR at [17] points out, given that the information in question must be the reason or a reason for affirming the decision reviewed, the information will only meet this description if it contains a "rejection, denial or undermining" of the appellant's claim to a protection visa. The ultimate s 424A issue then is whether information is information that "the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review" (emphasis added). That form of wording is not without its own interpretive complexities and difficulty in application, but it is the one Parliament has chosen to adopt and the Court must give effect to. Section 424A(2A) provides that the Tribunal is not obliged to give particulars of information nor invite comment or response "if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under s 424AA". Section 424AA deals with information and invitation given orally by the Tribunal while the applicant is appearing before it. That did not happen here and so s 424A(2A) is not presently relevant. Section 424A(3) further provides that the section does not apply to information in various categories. None of these categories apply in this case and the Minister does not contend otherwise. Section 424A(3)(a) is not relevant because the information here was specifically about the applicant. Further, the particular information was not information that the applicant gave for the purposes of the application for review. Additionally, the information was not information that the applicant gave during the process that led to the decision under review. Nor was it "non-disclosable information" as that expression is defined by s 5 of the Act. While there was plainly discussion in this case during the Tribunal hearing about the existence of the organisation in the Swat village, whether a jirga ruling had been given by it and whether the appellant was present at a meeting of the organisation if it was given, and information concerning fatwas and the particular fatwa alleged, the particular information obtained by the Tribunal from the Post in Pakistan was not given by the appellant. There can be little doubt that the material supplied to the Tribunal in DFAT Report: 756, and set out above at [37], constitutes "information" for the purposes of s 424A. What is set out in the answers is the "information". See generally SZBYR at [16] --- [18]. The next question then is whether the decision-making record before the Court discloses that the Tribunal considered that this information from the Australian Embassy in Pakistan "would be the reason, or a part of the reason for affirming the decision under review". As just noted, this is a phrase not without its own interpretive complexity and difficulty in application. One might say that it is unlikely often to be the case that the Tribunal will state expressly that it "considers" that particular information "would be the reason" or even "would be a part of the reason" for affirming a decision made. Instead, it will usually be by regarding a decision-making record that one will be able to form a judgement about the extent to which particular "information" was, in the event, "the reason" or "a part of the reason" for affirming such a decision. That this is so is, I think, reflected in the observation of the Full Court of the Federal Court in SZLPO (No 2) at [21] where, when considering whether the appellant had established that information as to the sources consulted by a certain organisation constituted information that the Tribunal then considered would be the reason, or a part of the reason, for affirming the delegate's decision, noted that there was no "direct evidence" of what the Tribunal considered at that time; it was a matter for "inference". The same approach to discerning the reason for decision is also to be found, I believe, in the Court's analysis in SZBYR . The RRT would be grateful for a response to the following question(s) ( if possible, please also detail the nature of the sources consulted in forming this response ). Please contact the office of the National Ameer of the Ahmadiyya Muslim Jamaat of Bangladesh to verify the authenticity of the applicant's letter and his claim to be a member of the Ahmadi community. The letter of introduction submitted is false and not signed by Mr. Asaduzzaman Bhuiyan, President, Ahmadiyya Muslim Jama'at, Krora. B. The applicant is not a member of Ahmadiyya Muslim Jama'at. Direct consultation with Mr. Asaduzzaman Bhuiyan, President, AMJ, Krora, who confirmed that he did not sign such letter and he never had such "Letter Pad". 2. Investigation from the nearby Jama'at of the applicant's birth place Sreemangal, Moulvibazar. 3. Our records. The Full Court of the Federal Court (Lindgren, Stone and Bennett JJ), at [24], noted that when the Tribunal requested of DFAT that, "if possible please also detail the nature of the source consulted in forming this response", the Tribunal was making it clear that it understood that the office of the National Ameer would have to consult sources. Apparently the Tribunal wished to ensure that the answer to be given as to the authenticity of the letter of introduction and of the appellant's claim to be a member of the Ahmadi community was reliable. It did so on the basis of the response of the Office of the National Ameer of 2 August 2007 to the effect that the letter of introduction was false and was not signed by Mr Bhuiyan and that SZLPO was not a member of Ahmadiyya Muslim Jama'at. Although the Tribunal did not say so, it must have been reinforced in its finding in relation to the letter of introduction by the fact that the Office of the National Ameer had consulted Mr Bhuiyan himself, who confirmed that he did not sign the letter and said that he had never had a 'letter pad' of the kind in question, and had also consulted the Jama'at near to SZLPO's birth place, Sreemangal, Moulvibazar. Accordingly, SZLPO's response could well have been different had he known the source of the information. The Full Court, at [31], held that it was to be inferred from the terms of the Tribunal's request of DFAT and the terms of the Tribunal's reasons for decision, that the Tribunal "thought that the nature of the sources that had been consulted by the office of the National Ameer would itself be part of the reason for affirming the decision under review". In the case now before me, the Tribunal asked DFAT to obtain the response of its Post in Pakistan to three questions or issues and requested, as in the case of the request considered by the Court in SZLPO (No 2) , "if possible please also detail the nature of the sources consulted in forming this response". Mr ... is the secretary ... The ... office is located at ... in Swat and was established in 1979. Mr ... confirmed that the email address, telephone number and registration number for the ... listed ... are accurate, however the telephone is currently not functioning. The following people were present at the September 2007 jirga: .... Mr ... confirmed the identity of [the appellant] who is the son of ..., both of whom are residents of ..., Swat. Mr ... did not personally hear [the religious scholar's] fatwa against the divorce and his call for the couple to be killed for adultery. However, in January 2007 Mr ... was advised of the fatwa by [the wife's former husband's family]. Other associates of Mr ... are also aware of [the religious scholar's] ruling. More broadly, Mr ... said that [the religious scholar] has been ruling against individuals who breach sharia law (who are specifically named in the fatwas). Further attempts to contact Mr ... to obtain contact details for those who have heard fatwas issued against individuals have proved unsuccessful. In that enquiry we spoke with Mr ..., ... police station who said that he had not heard [the religious scholar] issue fatwas over the radio against individuals for breach of sharia law. Recent attempts to contact Mr ... through the ... police station to follow up on this issue have proved unsuccessful (there is currently a curfew and military activity in Kabal and its surrounds). The first response noted in these reasons for decision, confirming the issuing of the jirga, reflected the substance of the response to question 6B. In summarising the evidence in the way it did the Tribunal may be taken to have implicitly accepted that the organisation does exist, which was the first issue of concern raised in question 6A. The information so considered by the Tribunal supported the appellant's claims and was not such as to reject, deny or undermine his claim. The s 424A duty would not apply to it. In the response to question 6C, the following comparison with the Tribunal's summary may be made: The s 424A issue in this case then is whether it may be said, or inferred, that the Tribunal considered the information provided by the Post in Pakistan to the Tribunal in relation to answer or issue 6C "would be the reason, or a part of the reason" for affirming the decision under review. In the critical passage of the Tribunal's reasons for decision set out at [43] above, the Tribunal accepted that there is a fatwa against the appellant and his wife. It noted this acceptance "despite some concerns". "Be that as it may", as the Tribunal put it, the Tribunal proceeded to determine the appellant's claim to refugee status having regard to the existence of the fatwa. First, the Tribunal noted the appellant's fear as being two-fold, namely, fear of persecution by TNSM by reason of having entered a "blasphemous marriage", and fear of harm from the appellant's wife's ex-husband's family. The Tribunal then noted the evidence, confirmed by the organisation, that the appellant and his family were attacked by his wife's ex-husband and members of his family. However, the Tribunal immediately observed that, "Notwithstanding this, the applicant's wife remains living in the area apparently unmolested". The Tribunal then proceeded to discount the appellant's explanation that this was because she was able to hide inside the home, and stated that "it would not be possible to escape such a fatwa by simply remaining inside the house". No other evidence is referred to at this point to justify this view, although earlier in its reasons the Tribunal records its discussion generally on this point with the appellant (see [28] above). In light of this reasoning and these findings it is evident that the reason, or a part of the reason, for the Tribunal's decision to affirm the delegate's decision under review was that the Tribunal did not consider that the fatwa should be accorded a high level of seriousness, in the sense it was at all likely to be acted upon. Having made its findings concerning the significance of the wife's unmolested residence in the NWFP, the Tribunal immediately added that if the fatwa has not been executed within their home province, where the TNSM has a major presence, then it "seems to the Tribunal" that the couple could safely relocate to another part of Pakistan where their reach does not appear to extend. This finding, in my view, also rests to some degree on the Tribunal's consideration that the fatwa should not be accorded a high level of seriousness. Finally, the Tribunal stated that it was not satisfied that authorities in Pakistan would fail to provide the appellant with protection should he return to Pakistan. This finding seems to have some regard to the evidence that the police attended to take some action following the report of the attack on the appellant by the ex-husband of his wife and his family. But, in my view, it also rests, to some degree, on the Tribunal's consideration that the fatwa should not be accorded a high level of seriousness. In short, while the Tribunal accepted that there was a fatwa against the appellant and his wife, "despite some concerns", it then minimised, if not discounted that finding by immediately going on to refer to the evidence concerning the appellant's wife remaining living in the area apparently unmolested and rejecting the explanation provided by the appellant as to why the existence of the fatwa and its likely enforcement was consistent with the wife's conduct. By so doing, the Tribunal implicitly found the fatwa should not be accorded a high level of seriousness. The findings concerning relocation and state protection rested, to some degree, on this implicit finding or, at least, there is a real risk that they did so. In these circumstances, the information obtained by the Tribunal from the Post in Pakistan --- ambivalent and unhelpful though it was in aspects --- must have reinforced the doubts of the Tribunal that led it to discount the level of seriousness of the fatwa and so were the reason or, at least, a part of the reason why the Tribunal thought the decision of the delegate should be affirmed. While, during the hearing, the Tribunal questioned the appellant about the reasons for his wife returning to the Swat valley and the extent to which her life might be considered to be in danger, the Tribunal did not, in my view, sufficiently communicate its doubts concerning the keenness of the wife's ex-husband's family or the religious scholar, or the TNSM to execute the fatwa. These were the very particular questions posed by the Tribunal to the Australian Embassy in Pakistan. While the Tribunal did not receive a particular response from the Post in Pakistan concerning whether fatwas issued by the religious scholar or the TNSM were honoured, the information provided plainly did not allay the concerns of the Tribunal and, furthermore, the Post advised in the sixth sentence of its response to question 6C, that further attempts to contact the source to obtain contact details for those who have heard fatwas issued against individuals had proved unsuccessful. Information of this sort can have a corrosive or undermining effect no doubt on a decision-maker who already entertains doubts about the strength of claims being advanced by an applicant. If the information obtained by the Tribunal had been provided to the appellant for comment or response under s 424A with the advice that the information to hand supports a view that the fatwa should not be accorded a high level of seriousness, he may well have been in a position to respond to the information by making further inquiries himself and, if necessary, by adducing further information or making further submissions on the point. In these circumstances, I find the information in answer 6C obtained by the Tribunal from the Post in Pakistan following the formal hearing with the appellant was "information that the Tribunal considers would be reason, or a part of the reason, for affirming the decision that is under review" for the purposes of s 424A(1). That being so, the Tribunal should have invited comment and response on and to this information as required by s 424A(2), the information having first been particularised in the manner required by s 424A(1). The Court's consideration to this point has been in relation to whether the Tribunal breached the obligation imposed upon it by s 424A(2) to give the relevant information and invitation to the applicant. I find that that obligation was breached and, by reason thereof, the Tribunal committed jurisdictional error: see SZBYR at [13]. So far as the appellant's complaint that he was denied procedural fairness "in the more general sense identified by the High Court in SZBEL " is concerned, I am unable to discern the particular basis upon which this submission is advanced by the counsel on the appellant's behalf. I have set out above the relevant passage of SZBEL in which the Court made reference to the possible application of the analysis of the Full Federal Court in Alphaone , although leaving the issue for further consideration. I am unable to detect any basis for application of that analysis on the facts of this case. Accordingly, I do not consider the appellant has made out a denial of procedural fairness in "the more general sense" contended for. In summary, in relation to this first ground of appeal, I consider the appellant was denied procedural fairness by reason of the Tribunal's breach of its statutory duty to accord procedural fairness to the appellant in terms of s 424A(1) and (2) of the Act. In that regard I consider the Tribunal committed a jurisdictional error in affirming the delegate's decision without inviting the comment and response of the appellant to the information it had to hand from the Post in Pakistan before doing so. The Federal Magistrate, in my view, erred in law in not finding that the Tribunal committed such jurisdictional error. For that reason, I would allow the appeal on this ground. However, if a fatwa is a religious prescription of general application, it is difficult to see how relocation within a Muslim country would negate its effect. Counsel for the appellant acknowledges that fundamentalist elements may be stronger in different areas of Pakistan, but no part of the country is free from its reach, a submission made previously on behalf of the appellant but not addressed by the Tribunal. Given the existence of a fatwa, the appellant submits it was not reasonable to expect the appellant to relocate because such relocation would not solve the problem. Counsel further submits that the Tribunal's comments about "cultural imperatives that require his wife to live in the company of other family members" did not accurately address the argument raised by the appellant on relocation. As a seaman, the appellant would be required to be missing from home for long periods of time. He specifically argued that were he and his wife to move to Karachi, "a woman on her own is not safe". This goes beyond "cultural imperatives". It goes to the question of the safety of unaccompanied Pakistani women. Accordingly, the relocation option is not reasonably practical within the parameters explained by the High Court in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 233 CLR 18. The move would place the appellant's wife at risk and there was an "appreciable" risk of harm to the appellant at the hands of fundamentalist Islamists. The appellant further submits that the ability to seek protection from the Pakistani State has no bearing upon the issue whether that State protection can be reasonably effective. The Tribunal appears to have extrapolated from the fact that one of the appellant's attackers in the past was arrested and briefly detained, that the State could provide reasonable protection. The Minister's submissions: Counsel for the Minister submits that this ground of appeal is in two parts, and asserts an error in the Tribunal's application of the legal principles applicable to the assessment of the "real chance" test, and the issue of relocation within Pakistan (and State protection). The two separate parts can conveniently be dealt with together. The Minister submits that, although the appellant's submissions assert legal errors, the detail of the submissions simply takes issue with the Tribunal's factual findings and conclusions. Accordingly, what the Court is invited to do, is to engage in merits review of the Tribunal's decision, not a role of the Court, whether at first instance, engaging in judicial review, or on appeal: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 , Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407. Consideration: In my view, the Tribunal's findings concerning the likelihood of persecution, relocation and state protection were made by the Tribunal as a consequence of its reasoning that the fatwa against the appellant and his wife should not be accorded a high level of seriousness. In light of my finding that the appeal should be allowed on ground one, I consider the Tribunal's findings as to these issues are also attended by jurisdictional error. Had I found differently in relation to ground one and rejected the appellant's submissions that he was denied s 424A procedural fairness, I would have also dismissed ground two on the basis that each of the findings concerning persecution, relocation and state protection were factual findings open to the Tribunal not attended by jurisdictional error, primarily for the reasons submitted on behalf of the Minister. I will hear from counsel for the parties as to the appropriate orders now to be made. I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

appeal from federal magistrate protection visa application fear of persecution procedural fairness natural justice migration act 1958 (cth) ss 424a(1) , (2), (3) jurisdictional error appeal upheld migration

The Tribunal affirmed a decision of the Minister's delegate to refuse the appellants a protection visa. The appellants' notice of appeal was drafted prior to them seeing the reasons of the learned Federal Magistrate and does not include any appropriate ground of appeal. That remains the position, there having been no amendment to it. 2 The substantial point at issue in the case is the so-called "relocation" principle. The appellants are citizens of Bulgaria and live together in a de-facto relationship. The female appellant sought a protection visa on the basis that she held a well-founded fear of persecution by her former husband and her membership of a social group defined as "Bulgarian women suffering domestic violence. " The male appellant's claim is made on the basis of his association with the female appellant. The Tribunal accepted that she was a member of such a social group and that she would have a well-founded fear of persecution by her former husband if it were not for her ability to relocate within Bulgaria. 3 The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and S ZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 , and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue. 4 The appellants, although not having framed any ground of appeal, referred me to some writings on relocation which, again, are based upon Randhawa 52 FCR 437. They submit that Bulgaria is a small country and that, effectively, relocation could not be effective because, as it was put, "Everybody knows everybody else," and presumably, that they could easily travel to where the other person is. That basis for attacking the judgment of the Federal Magistrate cannot succeed because it raises what is, essentially, a question of fact. It is not the task of the Federal Magistrates Court to make findings of fact. That is the province of the Tribunal. On judicial review, the Federal Magistrates Court is limited to assessing whether or not there was jurisdictional error. 5 Although the appellants point to no error in principle or law by the learned Federal Magistrate which would support an appeal, I have looked carefully at the matter because of the fact that, subsequent to the decisions by the Tribunal and Emmett FM, the High Court considered the issue. I have had assistance from counsel for the Minister in analysing the approach of the High Court in the relevant decisions as to whether or not that amounts to any revision of the principles laid down in Randhawa 52 FCR 437. It is not necessary, for the purposes of this case, to consider that in a general way. I should focus upon the facts of this particular case. 6 The basic test accepted by the High Court in SZATV 237 ALR 634 is whether it be reasonable, in the sense of being practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, noting, however, that what is reasonable in the sense of "practicable" must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality ( SZATV 237 ALR at 23---24). According to Australian law, if it can reasonably be expected that an applicant can relocate to another part of their country and live safely then the applicant does not have a well-founded fear of persecution in relation to that country. What is reasonable will depend on the circumstances of the individual case. I cannot find that the Tribunal proceeded upon a basis which is inconsistent with the decisions of the High Court to which I have referred. For the purposes of this case, it does not seem that there is any operative difference between the approach of the High Court and the approach applied by the Tribunal which, in turn, the Federal Magistrate found was not in error. 8 There is no need for me to comment about the findings about social group and persecution, as those matters were accepted for the purposes of the exercise by the Tribunal. The appellants' complaint is, in my view, a complaint about the merits of the decision-making by the Tribunal. Those merits, of course, are a matter of opinion, and although the appellants may not agree with the conclusion, in my view, it was a conclusion open to the Tribunal in the sense that it correctly identified the principle and then considered the facts which related to it. 9 I am bound to dismiss this appeal by each of these appellants. (2) The appellants are to pay the costs of the first respondent assessed in the sum of $2500.

tribunal correctly applied the relocation principle no jurisdictional error immigration

On 22 September 2006, the first respondent, FKP Limited ("FKP" and collectively with Lifestyle "the respondents") became the owner of 100% of the issued shares in Lifestyle. 2 From about 2005, the applicant, Coles Supermarkets Australia Pty Ltd ("Coles") was negotiating with Lifestyle for an Agreement for Lease ("AFL") and Lease whereby Coles would lease from Lifestyle supermarket premises in a proposed retail development to be constructed on the Tarneit Property. On 22 December 2006, Coles offered to lease from FKP a supermarket to be constructed on the Tarneit Property ("the Offer Letter") and that offer was accepted. 3 The Offer Letter was, on its face, executed by Coles as lessee and FKP as lessor. However, the respondents contend that, notwithstanding the way in which the Offer Letter is drafted, Lifestyle is the correct party when the intent of the parties is viewed objectively. Coles does not appear to be particularly concerned either way, but has pleaded its case in the alternative, probably out of an abundance of caution. 4 My present view is that the proper party to the Offer Letter, objectively considered, was and remains Lifestyle, primarily because it is the owner of the Tarneit Property and thus the only party directly capable of conveying a leasehold interest in the property to Coles: see Carminco Gold & Resources Ltd v Findlay & Co Stockbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472 at [22] (stating that the identity of the parties is a "simple question as to who, objectively considered, were intended to be the parties to the contract"). Another reason for this view is that the negotiations resulting in the Offer Letter were carried over from a period when FKP was not even in the picture (ie when Lifestyle was still Wilbow and was not owned by FKP), objectively suggesting that for Coles it was never a question of doing a deal with FKP but was rather a question of doing a deal with the owner of the Tarneit Property, whoever that was. 5 There is of course room to take the opposing view. For example, cl 14(b)(3) of the Offer Letter permits Coles to terminate the agreement if the "Lessor" does not own all of the land comprising the Centre by 1 March 2008. From this, one might reasonably infer that the parties contemplated that, whether or not FKP at the time of the execution of the Offer Letter owned the land, it was taking steps to purchase or otherwise acquire that land (whether from Lifestyle or otherwise). No doubt if it were Coles on the other side of the proceeding, Coles would claim that FKP was the lessor, FKP did not own all the land by the specified date and therefore it was entitled to terminate. 6 Ultimately, this issue is not one to which I have given extended consideration for several reasons. For one thing, the respective positions of each side on this issue were never properly developed or addressed in oral submissions. For another, the issue seems like one that the parties ought to be able to come to some kind of agreement about, especially because it is not clear that the question has any practical significance in light of these facts and circumstances (ie where Coles is the complaining party). FKP is the 100% owner of Lifestyle and there does not seem to be any concern that one FKP entity or the other is lacking in resources; regardless of which entity might be made the subject of an order to pay a money judgment. Even if there is an order for specific performance compelling the respondents to grant a lease, which Coles seeks, Lifestyle would not necessarily have to be the party against whom it was directed; it could be crafted as an order directing FKP to cause Lifestyle, as its wholly-owned subsidiary and owner of the property, to grant a lease. 7 However that may be, if the parties after reading these reasons for decision or in light of a particular position taken with respect to any future proceedings on the question of relief take exception to the finding that Lifestyle is the proper respondent to the contract claim or are otherwise unable to reach common ground on this point, then the parties may apply for me to reconsider the question with the benefit of more developed argument. For the remainder of these reasons, however, I propose to treat the respondents collectively unless otherwise noted. 8 Attached to the Offer Letter were three documents: development plan number SK001 Revision 7 produced by Bruce Henderson Architects and dated 28 November 2006 ("the 28 November 2006 plans"), Coles' standard AFL and Coles' standard lease. 9 It is common ground that the Offer Letter was a contract which bound the parties according to its terms. That approval was granted by Coles by no later than 15 February 2007. However, the Offer Letter also contemplated further negotiations for a final AFL and Lease as well as a final development plan for the site. 10 The course of those negotiations, which continued into 2008, will be set out and considered in further detail below. For now, the important point is that events underwent a fundamental shift on 18 March 2008 when, without the knowledge of Coles, Lifestyle and Woolworths signed a letter of offer of supermarket premises in a revised proposed retail development to be constructed on the Tarneit Property ("the Woolworths' Letter of Offer"). Unsurprisingly, Coles is unhappy. 11 Coles contends that the Offer Letter (with substituted Final Development Plans), Coles' standard AFL (as annexed to the Offer Letter) and Coles' standard lease (as annexed to the Offer Letter) constituted a contract between Coles and the respondents under which the respondents agreed to lease part of the Tarneit Property to Coles on the terms set out in it ("the Lease Agreement") and that, in breach of that Lease Agreement, the respondents have failed and refused to lease the Tarneit Property. Coles further claims that the respondents breached their equitable obligations of confidentiality by disclosing aspects of the Coles-FKP deal to Woolworths in order to secure the Woolworths' Letter of Offer. Finally, Coles makes claims under the Trade Practices Act 1974 (Cth) ("the TPA") arising out of alleged misrepresentations made to it both in the Offer Letter and subsequently. 12 As that short statement of the issues makes clear, the terms of the Offer Letter and the events which took place after that date (22 December 2006) are central to the resolution of this matter. Having carefully considered those matters, I conclude, for the reasons set out below, that the contract claims are made out but that the TPA claims fail. As indicated earlier, the question of what relief, if any, should follow has been left for separate determination with the agreement of the parties. It identified the lessor (purportedly FKP), the lessee (Coles) and that the lease would be for a term of 20 years with 2 options of 10 years each. The permitted use was stipulated to be use as a supermarket including the retail sale of liquor and all ancillary retail or service offerings. The rent and outgoings were stipulated. The premises will comprise a lettable area of approximately 3,200 square metres. The parties agree to act in good faith and use their best endeavours to agree as soon as practicable Final Development Plans which shall be based upon the Preliminary Development Plans. (c) The date on which the Lessor will hand over the Premises for the Lessee to carry out the Lessee works (substantial completion) is 1 January 2009. If substantial completion does not occur within 12 months of that date, the Lessee may terminate the agreement for lease. A copy of these standard documents is enclosed. The Lessor reserves the right to negotiate aspects of the Agreement for Lease and lease . (Emphasis added. First, the Offer Letter imposed obligations on the Lessor to commence or complete construction of the "Centre" by a particular date or time --- 1 March 2008 for development approvals (mainly zoning and planning approvals), 1 October 2009 for commencement, 1 January 2010 for substantial completion, and 1 February 2010 for completion: cl 14. However, the Offer Letter did not provide the Lessor with any right to terminate the Offer Letter or any subsequent agreement on the occurrence or non-occurrence of certain events. On the other hand, if the Lessor failed to achieve a number of milestones by the dates specified, Coles was entitled to terminate the AFL: cl 14. Finally, as cl 26 and the section headed "Legally Binding" make clear, the Offer Letter was a binding contract which would be superseded only when the parties had entered into the "full agreement for lease and lease". 18 There are two main issues with respect to the contract claim. First, Coles contends that, consistent with cl 10 of the Offer Letter, the Development Plans were finalised. The respondents disagree. This issue is primarily relevant to the question of relief - Coles seeks specific performance of the Offer Letter together with later development plans instead of the 28 November 2006 plans. However, the respondents also submit that it is inconsistent for Coles to now seek enforcement of subsequently negotiated and substituted development plans while simultaneously asking the Court to disregard the subsequent conduct of the parties with respect to the AFL and Lease, which the respondents submit involved multiple variations or novations of the Offer Letter. 19 The second issue is causation. The respondents contend that the contractual arrangements between the parties and recorded in the Offer Letter were replaced each time that a term of the AFL and Lease was agreed and that a term of those new contractual arrangements was a version of cl 1A. Coles disagrees. 1A.2 The Lessor will use reasonable endeavours to satisfy the condition in clause 1A.1 by the Approvals Date. 1A.3 The Lessee must, when requested, provide all assistance reasonably required by the Lessor in the Lessor's endeavours to satisfy the condition in clause 1A.1 . 1A.4 If the condition in clause 1A.1 is not satisfied by the Approvals Date, either party may, by written notice to that effect given at any time before the condition in clause 1A.1 is satisfied, end this agreement, in which case each party will be forever released from their obligations under this agreement. First, it sought to push out the development approval date (development approval was defined to encompass essentially the same approvals that the Lessor was required to obtain by 1 March 2008 under cl 14(b)(5) of the Offer Letter) from 1 March 2008 to 1 October 2008 (the date identified in item 5.4). Secondly, it sought to make the termination right in the event that approval was not obtained bilateral (ie either Coles or the respondents could terminate) rather than unilateral (ie only Coles could terminate) as under the Offer Letter. 21 Whether or not the parties agreed to cl 1A (or a version of it) is critical to the respondents' defence of these proceedings. If cl 1A was agreed, it was common ground that the condition precedent (ie acquisition of the development approvals) referred to in cl 1A had not been and could not reasonably be satisfied by 1 October 2008. Accordingly, the respondents submit that even if they breached a contract with Coles containing this term, they caused no damage because they would have terminated the contract in any event. 22 It is resolution of these issues which lie at the heart of the dispute between the parties. In my view, the answer to both is straightforward. First, consistent with cl 10 of the Offer Letter, the Development Plans were finalised. However, the parties did not enter into any binding agreement which included cl 1A. Notwithstanding the respondents' contentions to the contrary, these conclusions are not inconsistent with each other, both because the further negotiations were in each case undertaken pursuant to separate clauses and separate processes under the Offer Letter and because, when objectively viewed, the parties' conduct with respect to the Development Plans manifested present intent to be bound while the conduct in respect of the AFL and Lease negotiations did not. To understand the reasons for those conclusions, it is necessary to outline what transpired between the parties from 22 December 2006 (the date of the Offer Letter) and 18 March 2008, the date on which the Woolworths' Letter of Offer was executed. It is sufficient to address each of the issues separately. On its face, it was entered into by both Coles and FKP. Consistent with the opening paragraphs of the Offer Letter, the board of Coles approved the Offer Letter by no later than 15 February 2007. 24 Nothing significant transpired in relation to the Final Development Plans until September 2007. Mr Jason Delaney, who at the relevant time was the National Viability Manager of Coles, was not cross-examined. In his witness statement, he set out his involvement in settling the plans. In mid to late September 2007, he was asked by a Retail Leasing Manager in the Property Team at Coles, a Mr Ben Smith, to assess the development plan for the Tarneit site now being proposed by FKP to ensure it was viable from a design perspective. Contrary to the 28 November 2006 plans attached to the Offer Letter, FKP now proposed to put the supermarket within a mall. On 13 November 2007, Mr Delaney received by email from Mr Smith a copy of a 'Concept Plan' that had been provided to him by Mr Terry McCoy, a Commercial Manager at FKP. Mr Delaney was asked to provide any comments or concerns about the plan. On 15 November 2007, Mr Delaney requested Mr McCoy to provide the proposed development plan for the Tarneit site as a CAD file which would provide Mr Delaney with measurements accurate enough for him to undertake the design assessment task asked of him by Mr Smith. Later that day, Ben Hunter, an architect at i2C Design & Management who had been retained by FKP to prepare the proposed development plan, sent the CAD file to Mr Delaney. 25 After reviewing the plan provided by i2C Design & Management, Mr Delaney spoke to Mr McCoy on 19 November 2007 and told him that he had approved the proposed development plan subject to two matters - first, the entry to the mall needed shifting 6 metres to the right to accommodate Coles' stock room and to enable the "correct look through into the fresh food area of the store" and, secondly, the location and size of the trolley storage area required resolution. Later that afternoon, FKP provided a copy of the development plan which had been amended to take account of the changes proposed by Mr Delaney. Upon receipt of the amended development plan, Mr Delaney emailed Mr McCoy of FKP, Mr Hunter of i2C and Mr Smith of Coles stating that he was satisfied with the altered plan. No other correspondence passed between Coles and FKP about the plan for Tarneit. 26 The respondents submitted that no Final Development Plans were agreed. As the respondents submitted, what cl 10 required was that the parties act in good faith and use their best endeavours to agree, as soon as practicable, not another preliminary development plan or different preliminary development plans, but final development plans and that any Final Development Plans be based on the preliminary development plans. I reject the contentions of the respondents that no Final Development Plans were agreed. 27 The conduct of the parties was clear --- Mr McCoy and Mr Delaney considered and negotiated over the form of the final plans and there was no submission that either lacked actual or apparent authority to bind their respective employers on this issue. They agreed. Mr Delaney stated at the end of the email chain between him, the architect Ben Hunter and Mr McCoy of FKP that "all look[ed] good" and that, at some point, the architect should send through a CAD file for Coles' internal purposes. This came after an earlier email from Mr McCoy proposing a plan that from Mr Delaney's viewpoint still had the two issues referred to above. Moreover, there were no requests for CAD files in respect of the earlier proposed plans, which suggests that the parties still considered them subject to further revision. Reviewing the exchange in context, it is clear that upon Mr Delaney's "all looks good" email requesting a CAD file there were no remaining or outstanding issues and that, objectively viewed, the parties manifested a present intent to be bound by that plan. 28 Moreover, I find as a matter of fact that the 19 November 2007 i2C plan was "based on" the 28 November 2006 plans annexed to the Offer Letter in that it maintained the same basic concept of a supermarket anchoring a retail complex. The respondents noted a number of differences in the plans, including that the configuration of the specialities is altered, the car park lay-out is changed, a mall is included and the visibility of the supermarket is reduced. However, in both plans, the location and size of the supermarket and the car park, although not the same, is similar. The fact that the plans were prepared by another firm of architects or still described as a 'concept plan' is simply not to the point. In my view, the term "based on" does not, in its ordinary usage, require an overly high degree of correspondence between the plans; I am satisfied that the plans are sufficiently similar. 29 The respondents also made a construction argument to support their contention that the i2C plan did not constitute Final Development Plans. Specifically, the respondents submitted that the Preliminary Development Plans should in effect be understood as a "Site Plan" within the meaning of that term as used in the standard Coles AFL and the Final Development Plans should be understood as Premises and Centre Plans contemplated by Schedule 1 of the standard Coles AFL. I reject that contention as well. 30 There is nothing in the Offer Letter itself which compels or requires such a construction. To the contrary, the Offer Letter is in all other respects a self-contained document. Each of the other capitalised terms is defined either expressly or by context. Moreover, where the parties wished to incorporate or refer to terms or definitions in the standard Coles AFL and lease, they did so. For example, cl 22 of the Offer Letter provides that alterations to the Centre requiring Coles' consent "are set out in part L of the Lessee's standard lease. " As such, I consider it more likely, if the parties had wished to make the Offer Letter definitions correspond to the standard AFL definitions, they would have done so expressly. In the absence of such express reference, in my view the terms must be defined based on context. 31 The respondents then submitted that the i2C plan could not, in context, be considered Final Development Plans because it made changes that required Coles' consent pursuant to cl 22 and amendment of cl 18(c) of the Offer Letter. Needless to say, to the extent that consent was required under cl 22, it was clearly given by Mr Ben Smith in his emails to Mr McCoy discussed earlier. As for cl 18(c) of the Offer Letter, it provides that the Centre will open on the first Tuesday after the latest of certain events occurring. One of those events is all major tenancies in excess of 400 square metres and at least 50% of other shops, excluding a particular 267 square metre speciality, being ready to start trading. The 267 square metre store, although included in the 28 November 2006 plans, does not appear on the i2C plans. 32 The respondents therefore contend that adoption of the i2C plans would require an amendment to cl 18(c), and any plan requiring an amendment to the Offer Letter could not be a plan "based on" the Preliminary Development Plans. Even assuming that the latter half of this submission is accepted, I do not consider that the first part is made out. That is, I do not see that the deletion of the 267 square metre speciality from any final development plan would require an amendment to the Offer Letter. There is no provision anywhere in the Offer Letter that requires it to exist. To the contrary, the only provision that mentions it is cl 18(c), which does so in an exclusionary way (ie the 267 square metre store is specifically not one of those that must be leased and ready to trade in order to trigger the opening date). Thus, the fact that that store no longer exists does not impair the functioning of cl 18 and no amendment is required. (On the other hand, had there been an affirmative condition that the 267 square metre store be leased and ready to trade, then in the absence of that store the opening date of the Centre might never be triggered, which would cause the Offer Letter to fail for impossibility in the absence of an amendment. But that is not the case. I have reached that conclusion independently after considering the facts and matters outlined above. I note, however, that prior to trial the fact that the Final Development Plans had been agreed between FKP and Coles was admitted by the respondents to their lawyers on 27 February 2008 and in its amended defence filed with the Court on 6 October 2008. 34 Finally, even if (contrary to what I have found) the i2C plan did not constitute Final Development Plans, that would not alter the analysis for present purposes. The respondents contend that because Coles abandoned reliance on the 28 November 2006 plans the claim must be dismissed in the absence of any identified Final Development Plans. The problem with this submission is that it confuses the availability of certain relief with the viability of the breach of contract claim. True it is that Coles seeks specific performance only of an agreement containing the i2C plan; if such a plan were not found to be part of any binding agreement between the parties, it therefore follows that specific performance could not go because there would be no plan that the Court could order to be performed. It is still possible, however, that the respondents could have breached the parties' agreement in such a way as to be liable for money damages, which damages Coles claims in the alternative. 35 The respondents also ran an alternative argument that even if the i2C plans did constitute Final Development Plans, the fact remains that the plans contended by Coles to be part of the enforceable contract are not such as to enable actual development or construction of the site. That is, the i2C plan is not a final architectural drawing or construction blueprint from which to build. This submission, which I accept, may also have relevance to the issue of whether an order for specific performance can or should go; but again, it does not detract from the analysis of breach or the availability of money damages in respect of a given breach. Was There a Contract Between the Parties Containing Some Form of Clause 1A? However, cl 26 went on to provide that FKP reserved the right to negotiate aspects of the Agreement for Lease and lease . In other words, the Offer Letter contemplated that the standard-form Coles AFL and Lease would provide the default template, but that FKP could seek to modify that template through a further negotiation process. 37 From 22 December 2006 (the date of the Offer Letter) until 27 March 2008 (when Lifestyle informed Coles that it had "decided to cease negotiations with Coles in this matter"), at least ten (10) further drafts of the AFL and Lease were exchanged. The chronology of the negotiations is lengthy. On 30 August 2007, Mr Yongshun Hu, an in-house lawyer for Coles, sent a draft of the Lease and AFL to an in-house lawyer for FKP, Mr Tom Dugdale ("the First Draft"). The drafts were based on Coles' standard-form documents and incorporated the commercial terms agreed between the parties in the Offer Letter. The documents were submitted subject to approval of Coles and Mr Ben Smith. The drafts did not contain clause 1A. 2. Mr McCoy of FKP responded on 12 September 2007. He provided his "initial comments" on the draft AFL and Lease ("the Second Draft"). A form of clause 1A was proposed by FKP for the first time. 3. On 24 September 2007, Mr Hu replied. His responses to the proposed changes were marked with "[ ]" ("the Third Draft"). In response to proposed cl 1A, Mr Hu said, "[Not agreed. The letter of offer agreed by the landlord was not expressed as a deal subject to a condition precedent and giving the landlord a right to terminate. ]" The covering email stated that "I believe there are some issues with Ben Smith in relation to the changes to the Centre. No doubt the AFL and the Lease will need to capture the outcome of the discussions between you and Ben [Smith] once there is a position reached". 4. On 15 October 2007, Mr McCoy of FKP sent the fourth draft of the AFL and lease to Mr Hu. The form of the response was to attach amended versions of the Lease and AFL with the amendments marked up in order to list the outstanding issues and FKP's position on each issue. Mr McCoy suggested in the covering email that the parties meet to discuss. Clause 1A was listed as an outstanding issue. FKP's position was that "the agreement must be conditional on all necessary approvals being obtained, for obvious reasons". 5. On 19 October 2007, Mr Hu sent the fifth draft of the AFL and lease to Mr McCoy and Mr Dugdale of FKP. At that point in time, Mr Hu stated, "I believe we are very close to the end of the negotiation given the limited number of issues still outstanding. I have not agreed to some of the changes ... requested which relate to some of the commercial terms. I would have thought that those terms are no longer subject to any negotiations as they had already been agreed. " Mr Hu's comments on FKP's responses to the fourth draft were highlighted in yellow. Mr Hu asked that FKP's comments simply be added to the fifth draft in a different colour. Coles' position on cl 1A had changed --- the marked-up document now read, "I will get instructions on this clause. In the event that Coles is agreeable to a provisions [sic] of this nature, further amendments to this clause should be made". Mr Hu then proceeded to make preliminary comments and to raise a number of issues on each of the sub-clauses. 6. On 26 October 2007, Mr Hu and Mr Ben Smith of Coles met with Mr Tom Dugdale and Mr Terry McCoy of FKP to discuss the outstanding issues in the fifth draft. Coles agreed to cl 1A being inserted into the AFL but the issue of Coles' building permit was still to be discussed. At that time, there were still a number of other items to be resolved as well. 7. On 31 October 2007, Mr Hu sent the sixth draft of the AFL and lease to Mr McCoy and Mr Dugdale of FKP. As the covering email recorded, Mr Hu had accepted certain amendments which he believed Coles had no issues with. However, after further consideration of the matters discussed at the meeting on 26 October 2007, he had not amended the AFL (in five significant respects) and had not amended the Lease (also in five significant respects) as discussed at the meeting. His reasons for not making particular changes were set out at length. Mr Hu proposed an amendment to cl 1A. 8. Mr Dugdale of FKP responded on 5 November 2007. Various pages of the AFL and lease marked up by hand were attached showing the amendments FKP still required to be made (the seventh draft). Eight changes to the AFL were proposed and nine changes to the Lease. No change to cl 1A was proposed. 9. On 9 November 2007, Mr Hu held a telephone discussion with Messrs Dugdale and McCoy of FKP about the seventh draft. A number of the outstanding issues were agreed. Others were still unresolved and were left to be discussed. 10. On 12 November 2007, Mr Dugdale provided the eighth draft of the AFL and Lease to Mr Hu. The amendments to the drafts were marked. At that stage, there were five outstanding issues with the AFL (costs of variations, assignment, the definitions of Practical Completion and Substantial Completion, the terms of the handover letter and a proposed limitation of liability clause) and four outstanding issues with the Lease (content of Coles' repair obligations, one aspect of the clause dealing with alterations to the Centre affecting Coles' ability to trade, the terms of the assignment clause and rent obligations during part years). 11. Mr Hu responded on 13 November 2007. A copy of the AFL and Lease (the ninth draft) marked up with Mr Hu's comments was attached. The proposed changes were primarily concerned with but not limited to the matters identified in para 10. 12. During late November, Mr Hu contacted Mr Dugdale seeking a response to the ninth draft. The response was provided on 7 December 2007 in the form of the tenth draft of the AFL and the Lease. The limitation of liability clause included had been settled by FKP. In addition, what were described as "new changes" were now marked up. The outstanding issues were listed as part of the handover process in the AFL and five outstanding issues with the Lease including the assignment clause, Coles' responsibility for damages caused or contributed to by Coles' failure to comply with its lease obligations, adjustments to outgoings if the gross lettable area of the centre was reduced and if FKP sold the Centre and the timing of a provision of a deed from the purchaser that it would be bound by the terms of the lease. 13. From 14 December 2007 through to early January 2008, Mr Hu suggested that the limitation of liability provision in a proposed lease agreement between Coles and FKP in relation to a different site (Mt Annan) be adopted in relation to Tarneit. That suggestion was rejected by Mr Dugdale and Mr McCoy. 14. On 8 January 2008, Mr Hu provided Mr Dugdale and Mr McCoy with the eleventh draft of the AFL and the Lease. The covering email stated that Mr Hu had further reviewed the whole of the AFL and the Lease and made changes to the documents. The changes were in two categories; some minor, others necessary and required by Coles. There were at least ten changes to both the AFL and the Lease. 15. On 31 January 2008, Mr Dugdale responded identifying that there were now three outstanding issues --- the assignment clause, Coles' responsibility for damages caused or contributed to by Coles' failure to comply with its lease obligations and adjustments to outgoings if the gross lettable area of the centre was reduced --- for which he proposed a resolution. Mr Dugdale noted that although "matters that ha[d] previously been agreed [were] not to be revisited" he was "prepared to accepted some of the new issues that [Mr Hu] had raised. Mr Hu responded to the three issues on 6 February 2008. Coles did not agree to the changes proposed by FKP. Alternate clauses or explanations for Coles' lack of agreement were provided. I made it very clear to [Mr McCoy] that if he wants to use these 2 documents as the template for any future deals, we will revisit all amendments you requested and start the negotiation from scratch. [Mr McCoy then agreed not to do so. Not only were negotiations pursued by FKP but they were ultimately concluded on 18 March 2008 when Woolworths and FKP signed the Woolworths' Letter of Offer. 39 There is no general rule that parties having knowledge of a prior contract between different parties may not subsequently enter into a contract with fundamentally inconsistent terms. As I explained in Australian Securities and Investment Commission v GDK Financial Solutions Pty Ltd (in liq) (No 4) [2008] FCA 1071 at [98] - [100] , the lack of any such rule is the inevitable consequence of the efficient breach theory of contract, which, although it has occasionally been criticised, remains the controlling theory of contract damages under Australian law: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [159] . 40 In short, which of the contractual arrangements FKP decided to complete (if any) was ultimately a matter for it to decide in the future in light of its own enlightened self-interest. And it was its own self-interest that was the cause of it "ceasing negotiations" with Coles and entering into the Woolworths' Letter of Offer. Put simply, the undisputed evidence at trial showed that by the end of 2007 FKP was facing a time of financial hardship. Sales of significant assets had fallen through. It needed a cash injection and it needed it fast. An internal FKP deadline of an injection of $5 million by 31 December 2007 had passed without being met. In response, one proposal to raise funds quickly was to sell land in Cowes and obtain an anchor tenant for a development in Shepparton. The then ongoing stalemate on the lease at Shepparton was preventing FKP from selling the freehold or at least selling it at a higher price. FKP needed an anchor tenant. 41 The proposed deal partner for both of those sites was Woolworths. FKP's enticement to Woolworths to purchase the land at Cowes and become the anchor tenant at Shepparton was to offer Woolworths a package that included not only a lease of Shepparton and the purchase of Cowes but the ability to lease Tarneit. Woolworths accepted the "three-pack deal" and negotiations were complete by no later than 18 March 2008. 42 The respondents submitted that, notwithstanding the express terms of the Offer Letter and the ongoing negotiations between the parties, there was by 8 January 2008 a contract between the parties comprising all of the clauses of the eleventh draft of the AFL and lease together with clause 23 of the Offer Letter. At that time, clause 23 of the Offer Letter was silent about the release on assignment. Critical to the success of the respondents' case was that cl 1A of the AFL formed part of that concluded agreement. 43 I reject those contentions. As the history of the negotiations records, it was just that, negotiations. No concluded AFL or Lease was ever prepared or executed. Moreover, there was also no informal agreement (whether by 8 January 2008 or otherwise) evidenced by the chain of drafts in respect of major points objectively demonstrating a present intent of the parties to be bound so as to fall within the so-called fourth category of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353: see Carminco Gold (2007) 243 ALR 472 and Tasman Capital Pty Ltd v Sinclair [2008] NSWCA 248 at [25] - [29] . 44 If the respondents' contention was to be accepted, it would mean that a "new" agreement would have been concluded on each occasion one aspect or term of the AFL and Lease was resolved. That is absurd. It is contrary to the facts, commercial practice and understanding and is unworkable. It is contrary to the facts because as the summary of negotiations demonstrates some issues were "resolved" and then put back in the mix in negotiating other issues. That is human nature in negotiating. Issues come and go at different times depending upon the status of other issues and the importance of them. 45 While it is not to be doubted that an exchange of correspondence or other collection of informal (and even unsigned) writings may together form a contract, that will only be so if those writings objectively manifest a present intent of the parties to be bound: see Schoenhoff v The Commonwealth Bank of Australia [2003] NSWSC 918 at [71] ; Tasman Capital at [25]; see also Pryde v Bjorn 141 WashApp 1027 (2007) (considering when and at what point an exchange of drafts by email will be found to give rise to a binding contract prior to the signing and exchange of a formal contract). 46 Here, neither the circumstances of the case, the subject matter of the documents nor the conduct of the parties supports the contention that a legally binding AFL and Lease had been reached by 8 January 2008 or at any prior or subsequent time. None of the documents or correspondence relied upon by the respondents manifest any present intent to be bound by the terms as and when they were negotiated. There were outstanding issues. More importantly, each party in the course of the negotiations repeatedly brought up new issues, made further changes or comments regarding terms that had already been "agreed" and even threatened or attempted to revisit the entire deal. In short, a review of the evidence shows that there was an ongoing process of give-and-take; it cannot objectively be said that parties intended to be bound immediately. 47 Accordingly, it follows that the only binding contract was the Offer Letter with the November 2007 i2C plans; the subsequent drafts reflect only unconcluded negotiations, not variations, modifications, or novations of the Offer Letter. 48 Before proceeding to the issue of breach, it is necessary to say a few words about the contention of the respondents that it is not possible to distinguish between the events and negotiations leading to the Final Development Plans and the negotiations for the AFL and Lease. The first point of distinction is that the facts and circumstances, objectively viewed, disclose an intent of the parties to be bound by the i2C plans while no such intent appears with respect to any of the versions of the AFL and Lease. The second point is that the efficacy of the i2C plan as Final Development Plans affects only the question of relief. 49 The third and final point of distinction is that the negotiations were in each case conducted pursuant to different clauses of the Offer Letter. Clause 10 contemplated a later development plan that would take the place of the 28 November 2006 plans attached to the Offer Letter; it did not contemplate the entry into any agreement that would replace or supersede the Offer Letter itself. That is to say, one could have different development plans without varying or novating the Offer Letter itself. On the other hand, cl 26 contemplated the entry into a " full agreement" (the AFL) which would supersede or replace the Offer Letter. In other words, one could not have a concluded (whether formally or informally) AFL while also having a valid Offer Letter. Because the cl 10 process was for the substitution of a document attached to the Offer Letter while the cl 22 process was for the replacement of the Offer Letter itself, it is not inconsistent for Coles to maintain that the Offer Letter (in the absence of an AFL draft to which the parties objectively manifested a present intent to be bound) was and remained binding while simultaneously maintaining that the Preliminary Development Plans were replaced. BREACH OR REPUDIATION? 51 The respondents admit they breached an implied term of the Offer Letter, namely that the respondents would not seek to prevent performance of the Offer Letter or withhold its benefits: Butt v M'Donald (1896) 7 QLJ 68, 70-71 cited and referred to in Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 , 607; Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680. The event which the respondents said gave rise to the breach was the execution of the Woolworths' Letter of Offer on 18 March 2008. However, despite the generous admission of the respondents, I cannot accept that execution of the 18 March 2008 letter constituted a breach of the Butt v M'Donald term. 52 As noted earlier, there is no obligation in contract not to enter a later agreement containing terms inconsistent with a prior contract. Butt v M'Donald does not hold otherwise because it states only that a party will be in breach if it withholds benefits or frustrates the performance of another. In other words, the implied term will be breached only when the party does something that: (1) positively impairs or frustrates another party's ability to perform its obligations; or (2) actually deprives (not just possibly will deprive) the other of a contractual benefit. Entering into an inconsistent contract such as the Woolworths' deal here in itself does neither where, as here, the party subjecting itself to the conflicting obligations is still free to choose which it will perform (confer the benefit) and the date for performance has not yet come due. For example, the respondents could have changed their minds on 19 March 2008 and decided that it would be better to give the lease to Coles and instead breach their agreement with Woolworths. Then they could have changed their minds again on 20 March 2008 and so on. Thus, there was no breach on 18 March of which I can be independently satisfied, notwithstanding the respondents' admission. 54 The respondents disputed that they had breached cl 26 on the basis that unless and until Coles proffered an AFL that they wanted to execute, there could be no breach and that no such AFL was proffered by Coles until 23 June 2008. The respondents also disputed that they breached the implied obligation to act in good faith on the basis that no such term exists: Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 and CGU Workers Compensation (NSW) Ltd v Garcia (2007) 69 NSWLR 680 at [131]-[143]. 55 Whether an implied obligation of good faith independently exists and to what extent it might differ from the Butt v M'Donald term are complicated and hotly debated issues in contract law. Moreover, it would not be a simple matter to determine the extent of the respondents' obligation under cl 26 to negotiate and accept an AFL and Lease. (Indeed, that is always a problem in Masters v Cameron heads-of-agreement type cases where later negotiations break down. ) For example, at what point could Coles throw its hands up and say that the respondents were unreasonably refusing to negotiate or accept an AFL or Lease such that the default terms ought to apply? 56 Fortunately, it is not necessary to resolve the issues between the parties by reference to the admitted Butt v M'Donald breach or the first two breaches alleged by Coles because I am satisfied on the evidence that more straightforward breaches exist. First, the evidence that the respondents did not and could not obtain the necessary development approvals by 1 October 2008 necessarily implies that those approvals were not obtained by the 1 March 2008 date specified in the Offer Letter. Accordingly, I find that the respondents breached cl 14(b)(5) on 1 March 2008. 57 Secondly, the respondents breached the confidentiality clause of the Offer Letter on 26 February 2008. That they would admit this is not surprising because during the course of the trial Mr McCoy gave evidence during cross-examination, corroborated by certain of his emails which were tendered as exhibits, that he did in fact disclose this information to a representative of Woolworths on or about 26 February 2008. 59 Finally, I am of the view that when the respondents informed Coles on 27 March 2008 (see [37 (17)] above) that they were ceasing negotiations with it, that conduct constituted anticipatory breach of the Offer Letter which, in the circumstances which followed, was also a repudiation of that contract: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423. The relevant circumstances include the fact that the respondents refused to sign the eleventh draft of the AFL sent by Coles to FKP on 23 June 2008 which by then included the resolution of the three outstanding issues in the manner proposed by FKP on 31 January 2008 (see [21 (15)] above) which had initially been rejected by Coles. If that were not enough, by the time these proceedings were commenced in July 2008, it was clear from the manner in which the respondents have defended these proceedings that they have not and do not intend to further perform the Offer Letter, however construed: see DTR Nominees 138 CLR at 434. 60 I should note that my review of the Offer Letter in light of the evidence suggests that the respondents probably committed additional breaches of it. For example, cl 21 of the Offer Letter required the respondents to retain ownership of the premises at least until the Lease was executed. The clause also stated that the Lessor would be liable for "loss, expense or damage" caused by disposal of all or part of its interest in the Centre prior to execution of the Lease. If the respondents conveyed a leasehold interest over the Tarneit Property to Woolworths (there was no evidence of an executed or registered Lease between Woolworths and the respondents, only a letter of offer and an admission of an executed AFL), it would appear to be a breach of cl 21. However, as this and other potential additional breaches were neither pleaded nor squarely raised by the evidence or submissions, I will not address them further. 61 The relief to which Coles is entitled as a consequence of these breaches is a matter to be addressed in subsequent proceedings. With respect to the third breach (the anticipatory breach), for example, there is a question as to whether a plaintiff's election to hold the party to the agreement rather than rescind means that it cannot claim damages. It is sufficient for present purposes to note that some authorities suggest that anticipatory breach entitles Coles to damages only if it terminates the Offer Letter: see Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 , 48 and Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 , 416-417, 441-442). Of course any issue in that regard may be moot in light of the actual breaches: see Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21 ; (1976) 136 CLR 444 , 450; Huppert v Stock Options of Australia Pty Ltd [1965] HCA 30 ; (1965) 112 CLR 414 , 422-423, 426 and 431. 62 On the other hand, the issue of causation raised by the respondents does not arise because, as I have found, there was no varied or novated agreement between the parties containing a cl 1A giving the respondents a right to terminate the agreement. 63 The question of the equitable breach of confidentiality alleged by Coles is in a different category. The conduct relied upon by Coles to make out this claim is the same conduct that I have found constitutes a breach of the confidentiality term in the Offer Letter. Coles argues that equitable and legal obligations of confidence can co-exist. I disagree. In my view, no equitable duty of confidence arises where there is a contractual duty: see Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 ; (2007) 73 IPR 326 at [118] . The fundamental rule is that equity will not intervene where there is an adequate remedy at law. This was recognised by Fullagar J in Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 , 195, where his Honour considered that equity would withhold further remedies for breach of confidence where adequate remedies were available at law. 64 Moreover, even if the matter were not settled by the authorities, the conclusion that contractual and equitable obligations cannot co-exist would still follow as a matter of logic and basic principles. If a party were allowed to elect whether to bring an action in equity for breach of confidence (which Coles does to get an account of FKP's profits on the Woolworth's deal, in the hopes that those profits are more than its damages), that would effectively eliminate the efficient breach theory of contract because whenever a defendant entered into inconsistent contracts the party whose contract ended up being not performed could then capture any extra profit made by the defendant by suing in equity instead of recovering his own losses at law. The misrepresentations were said to comprise: (1) express representations, which were the representations and promises in the Offer Letter that the respondents would grant Coles a lease over the Tarneit Property; (2) implied representations; and (3) representations by silence. In my view, none of these claims is made out. 67 The interaction between the TPA and the law of contract is interesting and has been the subject of previous consideration: see by way of example Concrete Constructions Group v Litevale Pty Ltd (2002) 170 FLR 290; Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217; Mander Forklift Pty Ltd v Dairy Farmers Co-operative (1990) ATPR (Digest) 46-061. 68 In Futuretronics at 239, Ormiston J "expressed [his] doubts whether a contractual promise of itself carries with it any representation as to fact or conduct" actionable by reason of s 51A. It is only when it becomes apparent that the promise cannot be enforced, because, for example, it is either unenforceable or the promisee's rights are valueless or diminished, that one may return to the original promise to inquire whether that promise was of so little substance that it can be concluded that the promisee was indeed misled or deceived in the first place, at the time of his acceptance of the promise. Thus it may then be seen that the promisor originally had no intention to perform his promise or that he originally had no capacity or ability to perform it. If it can be shown that he had no such intention, he would be guilty of misleading or deceptive conduct. Likewise it would seem that such a representation connotes a present ability to fulfil that promise which, if shown to be untrue at the time of making, would likewise characterise the implied representation as misleading or deceptive. The questions which then arise are (1) what is the contractual promise in this case and (2) did the respondents have the intention and ability to carry it out at the time it was made? 70 In the present case, the specific promise relied on by Coles is the promise to grant a lease. It cannot be doubted that, on the evidence before the Court, the respondents had both the ability and intent to fulfil that promise at the time it was made. More broadly, the respondents admit that they impliedly represented to Coles that they would perform all obligations under the Offer Letter including an obligation to execute an AFL. Despite extensive cross-examination of the respondents' witnesses, Coles failed to establish that the respondents did not have such an intention or capability at the time the representations were made and at all times prior to 26 February 2008 when Lifestyle commenced negotiations with Woolworths to lease part of the Tarneit property to Woolworths. In my view, the evidence establishes that the respondents had reasonable grounds for making representations and promises of the kind contained in the Offer Letter and thus those representations and promises were not misleading or deceptive within the meaning of ss 51A and 52 of the TPA. 71 The question which then arises is whether the respondents' conduct in the period from 27 February 2008 to 27 March 2008, said to constitute representations by silence and implication, was misleading or deceptive or likely to mislead or deceive Coles? The answer to that question is no as well. To construe s 52 as imposing an obligation upon a party to a contract to advise the other party both of its interpretation of clauses in the contract, and that the clauses in the contract will be enforced or adhered to destroys the very basis of objective interpretation of contracts to which Mason J referred in Codelfa [ Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337] , 352). Again, however, even if it were not a matter of settled authority, I would apply such a rule as a matter of logic and basic principle. As a matter of basic contract law, a term will not be implied except in very limited circumstances (primarily where it is obvious, reasonable and necessary to make the contract work): Golden Sands at [223] and authorities there cited. In this case, Coles' alleged representation by silence and implication effectively amounts to a claim that there was an implied term of exclusivity - that is, that the respondents would negotiate exclusively with Coles - in circumstances where such a term could not be implied under contract law because it is not necessary to make the contract work. Thus not only would the rule that s 52 imposes a duty to advise as to the subjective interpretation of the contract destroy objective contract theory, it would also provide a means around the limitations on the implication of terms under the law of contract. 74 So radical a position cannot be accepted. In my view, the failure of the respondents to disclose their subjective view that the Offer Letter (or a particular clause therein) was not binding, that they would not adhere to a particular interpretation of a clause, or that they considered themselves free to take on or pursue agreements containing obligations inconsistent with those arising under the Offer Letter is not actionable under s 52 of the TPA. 75 Further, I should note that even if, contrary to the view I have formed, the representations alleged by Coles were actionable under s 52 , there would be a real question as to whether Coles is entitled to any relief over and above what it might get in contract, given that Coles seeks only damages under s 82 of the TPA. 76 For the foregoing reasons, my view is that the TPA claims fail. Accordingly, I will direct the parties to confer and jointly file short minutes of proposed orders giving effect to these reasons, including orders as to the further conduct of the proceedings, by 4:00 pm on 23 January 2009. If the parties are unable to agree, they are to submit a joint statement by 4:00 pm on 23 January 2009 identifying: (1) the point(s) of agreement; (2) the point(s) of disagreement; and (3) the respective positions of the parties on the point(s) of disagreement, in which case I will list the matter for further directions or hearing as necessary. If further directions or hearing are sought, the parties should consult amongst themselves and then contact my chambers with a list of mutually agreeable dates and estimated time required for the proposed directions or hearing. I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

inconsistent contracts whether later contract inconsistent with earlier contract will, without more, constitute breach of the earlier contract exchange of draft contracts by email when a communication or group of communications will constitute a binding agreement in the absence of a signed, formal contract contractual negotiations distinguished from variations and novations where there is no objective manifestation of present intent to be bound whether equitable obligation of confidence exists when there is a contractual obligation of confidentiality whether equity will intervene when there is an adequate remedy at law when a contractual promise or representation may form the basis of misleading or deceptive conduct claim under ss 51a and 52 of the trade practices act 1974 (cth) whether claims of misrepresentation by silence or implication arising out of a contract are actionable whether s 52 imposes an obligation on one contracting party to advise another of the former's subjective interpretation of the contract and whether particular clauses will be adhered to or enforced "implied representation," "representation by silence" contracts equity trade practices words and phrases

The claims of contravention of s 45(2) of the Trade Practices Act 1974 (Cth) ("the Act") were brought against the first to fifth respondents, which comprise five companies in the Toll/Patrick Group (collectively "Patrick"); the sixth to eight respondents, which comprise three members of the P&O Group (collectively "P&O"); as well as the ninth respondent, Australian Amalgamated Terminals Pty Limited ("AAT"), a joint venture between Patrick and P&O which carries on the business of operating the terminals. A director of Patrick, Mr Christopher Corrigan; a director of AAT, Mr Donald Smithwick; and two directors of P&O, Mr Andrew Burgess and Mr Timothy Blood, were said to have aided and abetted, or to have been knowingly involved in, the contraventions. The parties have reached agreement on orders which they wish the Court to make in order to dispose of the proceedings. The proposed orders include pecuniary penalties to be imposed under s 76 of the Act. The amounts which are proposed are $1,900,000 against each of Patrick Stevedores Holdings Pty Limited ("Patrick Stevedores") and D P World Australia Limited ("P&O Ports"). Provision is made in the proposed orders for Patrick Stevedores to pay the penalty by four equal instalments over a period of 18 months. This regime has been proposed as a result of financial pressures affecting that company, or its parent, in the current global financial circumstances. No penalty is to be imposed upon AAT. Consent orders were made on 11 June 2009, the effect of which was that the proceedings against AAT would be dismissed upon the basis that AAT would apply to the Commission for an order under s 88 of the Act for authorisation of the contractual arrangements which are the subject of the present proceeding. Nor is any penalty proposed against Mr Corrigan and the other directors in respect of their alleged involvement in the contraventions. The proposed orders in respect of the individual respondents is that the proceedings against them will be dismissed, so long as I am prepared to make the orders for pecuniary penalties against the relevant corporate respondents in the amounts stated above. The Statement of Facts was provided to me in accordance with s 191 of the Evidence Act 1995 (Cth). The facts which are agreed to in the document, and the admissions made in it, are agreed to have been made for the purpose of these proceedings only. The substance of the Agreed Statement of Facts is that Patrick and P&O admit that from about August 2001, they made various plans to provide access to each other's automotive terminal services at the ports of Brisbane, Sydney and Melbourne and to form a joint venture for the shared conduct of those facilities at the three ports, as well as others in Australia. Patrick and P&O also admit that during the period of about 14 months in which the arrangements between them were in place, they took steps to give effect to their plans. In particular, in October 2001, they jointly lodged a tender on behalf of the proposed joint venture to lease land at Glebe Island, in the port of Sydney, for the purpose of operating an automotive terminal from that land. The joint tender was successful and, in December 2002, AAT entered into a ten year lease of the land at Glebe Island. In [4] of the Agreed Statement of Facts, Patrick and P&O admit, for the purpose of these proceedings, that the conduct they engaged in, as described in more detail in the document, had the likely effect of substantially lessening competition in automotive terminal services markets in Brisbane, Sydney and Melbourne. However, no admissions are made by either Patrick or P&O as to the purpose or actual effect on competition of their conduct. AAT now operates terminals in Melbourne, Brisbane and Port Kembla. The parties have agreed that any effect on competition of the continuing conduct of AAT, and any public benefit arising from that conduct, is to be dealt with through the authorisation process under Part VII of the Act. The Agreed Statement of Facts contains a description of the companies comprising the Patrick Respondents and the P&O Respondents. It includes brief details of the takeover in 2006 of the First Respondent (then known as Patrick Corporation Limited) by Toll Holdings Limited ("Toll") and the subsequent restructure of Toll. The effect of the restructure of Toll has some bearing on this matter because the second to fifth respondents are now a subsidiary of Asciano Limited ("Asciano"). Confidential evidence was tendered before me as to the financial pressures affecting Asciano in order to explain the instalment regime for the pecuniary penalty to be paid by Patrick Stevedores. I will set out below the relevant parts of the Agreed Statement of Facts which appeared under the sub-headings "Markets and Market Structure", "The Development of the AAT Joint Venture", "Likely Effect of the Arrangement" and "Contraventions". An automotive terminal is a piece of infrastructure that is suited to the loading, unloading and storage of motor vehicles. In particular, the area adjacent to the wharf must generally be large enough to accommodate large volumes of motor vehicles and generally be free from any obstructions that might restrict the movement of motor vehicles. The Commission, P&O and Patrick agree, for the purposes of these proceedings only, that the most appropriate markets for analysing the conduct during the relevant period are three separate geographic markets in each of the three ports for the supply of automotive terminal services (described respectively as the Sydney , Melbourne and Brisbane terminal services markets ). During the relevant period, Patrick and P&O were the only automotive terminal operators and suppliers of automotive stevedoring services, in each of Sydney and Brisbane. In Melbourne, the only automotive terminal operators and suppliers of automotive stevedoring services were Patrick and Toll. P&O was not able, in a commercial sense, to supply automotive terminal services at Appleton Dock in the Port of Melbourne, as Appleton Dock was an inferior facility in that it was not a specialised automotive terminal. Subject to obtaining access to a suitable terminal, P&O was a potential supplier of automotive stevedoring services in Melbourne during the relevant period. An estimated 60-65% of motor vehicles unloaded in Port Jackson were unloaded at Glebe Island by P&O automotive stevedores, while the remaining estimated 35-40% were unloaded at the Patrick automotive terminal at Darling Harbour by Patrick automotive stevedores. P&O's lease over Glebe Island was due to expire in October 2002 and, in about March 2001, the Sydney Ports Corporation informed P&O that it proposed not to renew the lease on its current terms. Around that time, Sydney Ports Corporation sought public expressions of interest for the lease of land at Glebe Island. Patrick and P&O each submitted an expression of interest to Sydney Ports Corporation for the lease of Glebe Island on a sole user basis. In the Port of Brisbane, by early 2001, the Port of Brisbane Corporation had made it known both to Patrick and P&O that it proposed to relocate the automotive terminals in Brisbane to a single automotive terminal in Fisherman Islands (further from the city of Brisbane towards the mouth of the Brisbane river). The Port of Brisbane Corporation also made it known that all berths at Fisherman Islands would be operated on a "common user" basis, that is, that the Port of Brisbane Corporation would control the berths adjacent to the automotive terminal and would grant licences to stevedores that may request access from time to time. In or about June or July 2001, senior executives of Patrick and P&O met to discuss a proposal to share P&O's Glebe Island Motor Vehicle terminal in Port Jackson and Patrick's Webb Dock East terminal in the Port of Melbourne as a prelude to the establishment of the AAT joint venture. After further negotiations, on about 15 August 2001, P&O and Patrick produced the document annexed to this Agreed Statement of Facts and marked 'A' ( the First In Principle Agreement ). Once the redevelopment of Glebe Island was completed by AAT, it would issue licences to other stevedores that may request access from time to time, in addition to Patrick and P&O. In August 2001, Sydney Ports Corporation released its request for tender of land at Glebe Island. The request for tender included an option for bidders to submit a tender on the basis that common user access would be permitted. The request for tender stated that, under a common user system, the Sydney Ports Corporation would control the Glebe Island berths; that is, the Sydney Ports Corporation would grant licences to stevedores that may request access to the berths from time to time. Thereafter, Patrick and P&O jointly prepared and, on or about 15 October 2001, submitted, a tender for the lease of Glebe Island on behalf of Australian Automotive Terminals Pty Limited, the then working name of the entity which was registered on 16 October 2001 as AAT. The tender proposed that AAT would operate the Glebe Island Motor Vehicle Terminal as a multiple user facility. From about December 2001, Patrick granted P&O access to Patrick's automotive terminal at Maritime Wharf, Brisbane, as provided for in the First In Principle Agreement, and P&O Ports began automotive stevedoring there. In or about February 2002, Sydney Ports Corporation advised P&O and Patrick that AAT was the preferred tenderer for the lease of Glebe Island and began negotiations with AAT. In early April 2002, senior executives of Patrick and P&O met to discuss the proposed operations of AAT. At the meeting the participants agreed to review the First In Principle Agreement so as to better define the parties' rights. Subsequently, the First In Principle Agreement was revised ( Revised In Principle Agreement ). Insofar as the Revised In Principle Agreement was in writing, it was recorded in an unsigned document entitled "In Principle Agreement" bearing the date April 2002. A copy of the document is annexed to this Agreed Statement of Facts and marked 'B'. AAT would also provide Patrick and P&O with access to each of those three automotive terminals. Once the redevelopment of Glebe Island was completed by AAT, it would issue licences to other stevedores that may request access from time to time, in addition to Patrick and P&O. In May 2002, representatives of P&O and AAT met with the Port of Brisbane Corporation to introduce AAT. At that meeting, the Port of Brisbane Corporation stated a preference that AAT take over overall management of berths 1-3 at Fisherman Islands instead of the previous common user proposal. Thereafter, AAT lodged an expression of interest with Port of Brisbane Corporation for AAT to acquire premises at Fisherman Islands to be operated on a multiple user basis which would accommodate the operations of both P&O and Patrick, previously conducted at Hamilton Wharf and Maritime Wharf respectively. Patrick and P&O did not lodge expressions of interest. In essence, Patrick and P&O proposed to share automotive terminal facilities but continue to conduct separate stevedoring businesses from those facilities in competition with one another and potentially other stevedores. Initially, they agreed to specific steps to share their existing facilities. The next step was to put the existing facilities into a joint venture. Ultimately, the joint venture would develop new automotive terminals. By reason of the foregoing, the Commission, Patrick and P&O consider that, between September 2001 and April 2002, Patrick and P&O made an arrangement within the meaning of section 45(2)(a) of the Act (the Arrangement ). Patrick and P&O admit for the purpose of these proceedings only that the Arrangement described in this document subsisted until about November 2002. By reason of the conduct of Patrick and P&O, AAT would be the only supplier of automotive terminal services at Glebe Island. Therefore as at November 2002 in Port Jackson, having regard to the fact that Patrick and P&O were the only suppliers of automotive terminal services prior to the Arrangement, and the substantial barriers to entry, the Arrangement was likely to have had the effect of substantially lessening competition in the Sydney terminal services market. By reason of the conduct of Patrick and P&O, AAT would be the only supplier of automotive terminal services at Maritime Wharf and subsequently, Fisherman Islands. Therefore as at November 2002 in the Port of Brisbane, having regard to the fact that Patrick and P&O were the only suppliers of automotive services prior to the Arrangement, and the substantial barriers to entry, the Arrangement was likely to have had the effect of substantially lessening competition in the Brisbane terminal services market. In Melbourne, the pre-existing market structure was that the two major automotive terminal operators were Patrick and Toll. P&O's facility at Appleton Dock was inferior. In the short term, the arrangement allowed P&O to stevedore at the Patrick East Webb Dock facility, thereby improving its ability to compete for automotive stevedoring customers. Whilst this was an improvement in competition in the stevedoring markets, it gave rise to the likely effect of substantially lessening competition in the Melbourne terminal services market by removing the incentive of P&O itself to compete to supply automotive terminal services in Melbourne. Four relevant matters are specified in s 76(1), but the Court is not confined to them. A checklist of six additional matters was identified by French J in Trade Practices Commission v CSR Limited (1991) ATPR p41-076 at 52,152---52,153, to which judges have frequently made reference: see NW Frozen Foods at 292. As French J said in Trade Practices Commission v CSR at 52,152, the principal, and probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and others. That is to say, the quantum is informed by considerations of specific and general deterrence: Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 363 ; (1984) 4 FCR 296 at 298. Much has been said in the authorities about the need to deter conduct which is antithetical to the promotion of competition and the seriousness of Parliament's intentions in that respect: NW Frozen Foods at 293---294; Australian Competition and Consumer Commission v ABB Transmission and Distribution Limited (2001) ATPR p41-815 at [13]; Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329 at [22]; Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 ; (2005) 215 ALR 301 at [39] . As Lindgren J observed in Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89 at [25], the principles governing the imposition of penalties for contravention of Part IV should be considered in light of the most recent Full Court pronouncement in Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR p41-993. In that case, at [51], the Full Court listed six propositions that emerge from NW Frozen Foods . Second, the sixth proposition from NW Frozen Foods (see [26] above) does not mean that the court must commence its reasoning with the level of penalty proposed and limit itself to considering whether that penalty is within the permissible range: the court may, instead, address the question independently at the outset. Third, there was no suggestion in NW Frozen Foods that the admissions or statement of agreed facts had been "tailored or modified to reflect the difficulties faced by the [commission] in proving its case" (at [55]). Fourth, the regulator should always explain to the court the process of reasoning said to justify a discounted penalty (the court referred to Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851 ; [2001] FCA 1716 at [56] ). It is for me to determine the appropriate penalties having regard to all the circumstances, and taking into account the propositions emerging from NW Frozen Foods , as further explained in Mobil Oil (2004) ATPR p41-993 . The summary of those propositions and further points set out above make clear the public interest factors which underlie the non-litigious resolution of enforcement proceedings and the regard which the Court will have to the views of the regulators. The essential question is not whether I would have, without the assistance of the parties, reached the precise figures agreed between them. Rather, it is whether those amounts are "within the permissible range" in all the circumstances: NW Frozen Foods at 291. In answering that question, it is open to me to commence with the amount of the proposed penalties and then determine whether they fall within the permissible range. Alternatively, it would be permissible to address the appropriate range independently and then determine whether the proposed penalty falls within that range: Mobil Oil (2004) ATPR p41-993 at [54]. As noted at paragraph 5 above, an important component of the proposed resolution of these proceedings is the lodgement by AAT of the authorisation application pursuant to s88 of the Act. This is the first occasion on which a court has been required to decide upon the appropriate penalty in such circumstances. In the unusual circumstances of this case, the Commission, Patrick and P&O jointly submit that the primary reason for imposition of the penalty sought in this case is, by way of general deterrence, to deter corporations from risking contraventions of the Act which may otherwise obtain the benefit of an authorisation from the Commission, whether with or without conditions. Patrick and P&O could have sought authorisation for the Arrangement during the relevant period. Patrick and P&O accept that they ought to have sought an authorisation from the Commission for the Arrangement so as to avoid risking contravention of the Act. On the other hand, the Commission accepts that, whilst the terms of the Arrangement were not provided to it for scrutiny in the context of an application for authorisation, it is relevant on the issue of penalty that the conduct did not result from a secret, collusive agreement. In these circumstances, general deterrence will be served by the penalty proposed to be imposed upon the Second and Seventh Respondents, who were directly involved in the conduct at the relevant time. It is submitted that no punitive element is warranted in the penalty awarded by the Court, as there has been no flagrant or wilful contravention of the Act by Patrick, P&O or any related body corporate. It comprised an agreement between Patrick and P&O to rationalise automotive terminal infrastructure, including by the formation of a joint venture company to provide automotive terminal services in each of the three ports. The three ports constitute the main Australian destinations for importation of motor vehicles. Patrick and P&O intended to make the Arrangement, proceeded to do so and to give effect to it. The volume of commerce, measured by gross sales revenue over the relevant period in the markets affected by the conduct in question, cannot be accurately calculated by Patrick by reference to its audited accounts for the relevant period because Patrick compiled those accounts on an aggregated basis for its whole stevedoring business of which automotive stevedoring was a small proportion. On the basis of the aggregated information contained in its management accounts for the financial year 2001/2002 for its automotive, bulk and general stevedoring division, Patrick estimates that total gross revenue for automotive stevedoring services in the three ports did not exceed approximately $15 million for that financial year. Similarly P&O did not during the relevant period keep accounting records which adequately identified revenues from its automotive stevedoring businesses for each of the three ports. No accounts were kept separately for "automotive terminals" or "automotive stevedoring" businesses. For the years ended 31 December 2001 and 31 December 2002 P&O estimates that total revenues from its automotive terminal and stevedoring businesses for the three ports were $14 million and $15 million respectively. Whilst the conduct had the likely effect of substantially lessening competition in the relevant terminal services markets, the Commission accepts, for the purpose of these proceedings only, that the objectives of Patrick and P&O in entering the Arrangement were likely to have included increasing efficiencies by gaining access to scarce port land and the superior terminal in each port, and improving utilisation of that land. The increased capacity of the joint venture to invest in infrastructure, due to the increased volume of business, was also harnessed. In this respect, regard was had by Patrick and P&O to the desire of the Sydney Ports Corporation and the Port of Brisbane Corporation to have one automotive terminal only, with a view to achieving such efficiencies. The Commission's case was that the conduct of Patrick and P&O, including the creation of AAT, led to a substantial lessening of competition in terminal services markets in each of the three ports. On this issue, the Commission's position was (and remains) that whether the impugned conduct led to the gaining of efficiencies or other public benefits is irrelevant to whether or not there had been a substantial lessening of competition in relevant terminal services markets for the purposes of s45 of the Act. Rather, those matters are only able to be brought to account in the context of an authorisation application made under Part VII of the Act. On the other hand, Patrick and P&O proposed to lead evidence that the relevant markets were no less competitive in future with the impugned conduct than without the impugned conduct, and argue that the operations of AAT resulted in increased efficiencies to customers, being shipping lines and importers, and stevedores (including potentially third party stevedores). Further, they contend that, to the extent such efficiencies could be established, they should be taken into account in the determination of whether or not there had been a substantial lessening of competition in the relevant terminal services markets. The resolution of the proceedings in the manner the Commission, Patrick and P&O propose leaves to the authorisation process currently underway the determination of the question of whether any lessening of competition arising from the operations of AAT (at least in the future) is outweighed by any public benefits able to be established (including any efficiencies). There is no dispute between the Commission, Patrick and P&O that these matters can properly be raised in the authorisation process. Patrick and P&O do not admit that the conduct in fact affected competition in contravention of the Act. Rather it has been admitted that the conduct had the likely effect of affecting competition substantially, as at November 2002. In the proposed resolution of these proceedings, the other allegations in the Second Further Amended Statement of Claim will be dismissed, and accordingly it is not necessary for the Court to consider the purpose or actual effect on competition in any market of the conduct, nor any conduct occurring after November 2002. P&O and Patrick admit only that the Arrangement was likely to have the effect of substantially lessening competition in the terminal services market and do not admit that it had the effect of causing loss or damage. It was openly conducted between the parties, and was known in the market to have occurred, by customers of Patrick and P&O, the relevant ports corporations, and competitors, such as Toll. Customers were informed of the Arrangement at the time the Arrangement was first contemplated by Patrick and P&O. In the ports of Sydney and Brisbane, Patrick and P&O were the sole providers of automotive terminal services. In the port of Melbourne, Patrick and Toll were the main providers of automotive terminal services. As noted at paragraph 17 above, there were substantial barriers to entry into each of the terminal services markets. The Second Respondent has made a separate submission, which includes some confidential material, which relates to the financial circumstances of the corporate group of which the Second Respondent is a member. The Sixth to Eighth Respondents are each ultimate subsidiaries of DP World Ltd which is a substantial listed company in Dubai conducting a container terminal business worldwide. None of the individual executives involved in the conduct remain in the employ of Patrick, or any of the Asciano owned group of companies, or any of the P&O companies owned by DP World. None of the current directors of Asciano were directors of Patrick at the relevant time. Asciano's ownership of Patrick arose from a hostile public company take-over by Toll, and accordingly Toll was not in a position to perform due diligence on the target companies, the First to Fifth Respondents, or to satisfy itself about the compliance with the Act of any of the terms of any arrangements entered into by those companies. It is acknowledged that some shareholders in Asciano may have held shareholdings in the Respondents during the relevant period. For the most part however, the current shareholders in Asciano are public shareholders, whose investment in Asciano would be diminished by reason of the award of any substantial penalty against Patrick. The shareholders of P&O are now completely different to those at the relevant time as set out in paragraphs 11 to 13 above. Training materials are supplied to staff which includes material relevant to compliance with Part IV of the Act generally, as well as in relation to the type of conduct the subject of these proceedings and the availability of authorisation under s88 of anti-competitive conduct on public interest grounds. The DP World group had no involvement in these alleged contraventions or knowledge about them prior to the Commission commencing its investigation of the matter. The DP World corporate respondents, and the DP World Group generally, have taken considerable steps to co-operate with the Commission and have sought to deal with the Commission in an open manner. For example, DP World proactively approached the Commission to bring to a close the long standing Section 155 investigation regarding the container terminal landside interface. DP World has since made considerable efforts to advise the Commission of developments in the container terminal landside interface bearing in mind the various State Government and Port Authority initiatives. The DP World respondents have a corporate culture conducive to compliance with the Act. This is evidenced by DP World providing training to both senior management and compliance training at each of its terminals in 2008 for all personnel likely to be involved in those areas considered appropriate (especially the landside interface). DP World's senior management and its worldwide legal counsel have made it clear to DP World in Australia they wish DP World to engage with the Commission to improve the level of communication. Patrick and P&O, as shareholders in AAT, support AAT pursuing its application for authorisation of AAT pursuant to section 88 of the Act, and will incur further costs during that process. The Commission accepts that the decision of Patrick and P&O to agree to resolve these proceedings in this way has saved considerable Court time and Commission resources. The determination of the amount is not done by the application of a formula and the courts have recognised that, within a certain range, one figure "cannot be incontestably said to be preferable to another": Trade Practices Commission v TNT Australia Pty Limited (1994)] ATPR p41-375 at 40,165. The principle of parity of penalty for similar offences is an important one, but as Burchett and Kiefel JJ observed in NW Frozen Foods at 295, things are rarely equal where contraventions of the Act are concerned. Their Honours went on to say that the quantum of penalties imposed in other cases can seldom be of much direct assistance. Here, the question of quantification of the penalty falls to be considered in light of the fact that the conduct in question is admitted to be likely to have had the effect of substantially lessening competition, but no admission is made that this was the purpose, or that it actually had that effect. It is also to be borne in mind that the Commission accepts, for the purpose of these proceedings, that the objectives of Patrick and P&O in entering into the arrangement were likely to include increased efficiencies, as stated in [80] of the Joint Submissions. The Commission's position is that the suggested increased efficiencies are irrelevant to the question of whether there was a substantial lessening of competition. Patrick and P&O dispute that proposition. But the fact that they do so is, no doubt, one that would have informed the negotiation process. So too is the fact that the parties were still in dispute as to whether the impugned conduct had the proscribed purpose or actual effect on competition. What seems to me to be of particular importance is that the parties have agreed that the effect on competition of any continuing conduct by AAT at the terminals in Melbourne, Brisbane and Port Kembla, and any public benefit said to arise from such conduct, will be dealt with pursuant to the Commission's power to grant an authorisation under s 88 of the Act. An application for authorisation has now been made, so that the question of public benefit will be considered by the Commission under s 90 of the Act. Section 90(6) provides that the Commission shall not grant authorisation unless it is satisfied in all the circumstances that the proposed conduct would result, or be likely to result, in a benefit to the public that would outweigh the detriment constituted by the lessening of competition; see also s 90(8). Other important factors are the 14-month duration of the contravening arrangement, which was comparatively short, and the estimated revenue from the automotive terminal and stevedoring businesses at the ports in question. Whilst the total annual value of retail motor vehicle sales in Australia is approximately $25 billion, of which a substantial percentage constitutes vehicles imported through the ports of Brisbane, Sydney and Melbourne, the estimates of gross revenue for stevedoring services is quite small. Patrick estimates that its total gross revenue from stevedoring services in the three ports did not exceed about $15m for the financial year 2001 to 2002. P&O estimates total revenues not exceeding $15m in each of the years in question. Another important factor is that the conduct was not clandestine. It was known in the market and customers were informed of the arrangement when it was first contemplated. It is common ground that Patrick and P&O's customers were large shipping lines which have contractual and other commercial relations with large global motor vehicle manufacturers which export vehicles to Australia. None of the customers appears to have made any complaint about the conduct of Patrick and P&O notwithstanding the fact that approximately seven years have passed since it was first made known to them. This is not to understate the seriousness of the conduct which has been admitted but it does distinguish it from the clandestine behaviour which is at the heart of price fixing cartels. It is therefore a factor (though of course not the only one) which informs the imposition of a much lower penalty than was ordered in Australian Competition and Consumer Commission v Visy Industry Holdings Pty Limited (No 3) (2007) ATPR p42-185 and ACCC v Qantas. Other relevant factors include those that are referred to at [92]---[106] of the Joint Submissions set out above. In addition, as is stated in the Joint Submissions, the admissions of liability have been made well before the hearing and will result in significant saving of court time, costs and expenses to the Commission. This is an important aspect of public policy to which the majority judges referred in NW Frozen Foods at 291. As their Honours said, the beneficial consequences which flow from the settlement would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. The factors to which I have referred above satisfy me that the penalties to be imposed on Patrick Stevedores and P&O Ports are within the permissible range in all the circumstances. I am satisfied that this is not a clear case for departing from the agreed settlement. I will therefore make orders in terms of the draft short minutes of order handed up by counsel for the Commission. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Payne SC and Ms K.H.

claims of contravention of s 45(2) of the trade practices act 1974 (cth) determination of pecuniary penalty under s 76 parties jointly proposing to court amount of penalty need for general and specific deterrence public interest factors which underlie the non-litigious resolution of enforcement proceedings court will have regard to the views of the regulators whether proposed penalty falls within "permissible range" pecuniary penalty ordered in terms agreed. trade practices

The Tribunal found in its decision that ' the only reason he fears persecution in Lebanon is because he was a solider in Aoun's army '. The Tribunal referred to independent material which, it concluded, supported a finding that former service with General Aoun did not give rise to a real chance that the appellant would be persecuted. 3 The Tribunal was prepared to accept that the appellant might have been detained by Syrian forces at some stage during the civil war in Lebanon but it rejected his account of having been arrested a second time and of having been accused of spying for Israel. The Tribunal concluded that the appellant would no longer be of any interest to the Syrians and that his fear of persecution in Lebanon was therefore not well-founded. 4 The Tribunal's decision was dated 28 October 1997. The application for review to the Federal Magistrates Court was filed on 26 November 2004. In the period of time between decision and application for review, the appellant had sought a discretionary decision from the first respondent and had joined a class action in the High Court, his involvement in which ceased on 20 June 2003. If the Tribunal decision was a privative clause decision unaffected by jurisdictional error, the application to the Federal Magistrates Court was out of time by reason of s 477(1A) of the Migration Act 1958 (Cth) ('the Act') and his Honour had no jurisdiction to consider the application. 5 The notice of appeal to this Court was filed out of time but, on 9 August 2005, Hely J granted an extension of time for lodgement. A number of grounds were raised. Scarlett FM dealt with those which simply raised factual matters and sought merits review and said, correctly, that they did not found jurisdictional error. 7 The claim that the appellant was not given sufficient time to respond to questions was dealt with by his Honour on the basis that there had been no application for an adjournment and no evidence that the Tribunal had failed to give the appellant a reasonable opportunity to respond. That finding has not been shown to be in error. 8 The appellant was not aware of a ground included in his application, that the Tribunal had failed to refer him to a psychologist, because someone else had completed his application. In any event, Scarlett FM observed that the Tribunal was under no duty to make such a referral, nor a duty to provide the appellant with a transcript of the tapes of the hearing. No error is apparent in those conclusions. 9 Scarlett FM also dealt with a claim of an alleged failure by the Tribunal to present to the appellant an Amnesty International report and to give him the opportunity to comment on it and other information in "the Green Book". His Honour held that the Tribunal was not obliged to do so by reason of s 424A(3) of the Act. As pointed out by Hely J, the proceedings before the Tribunal were completed before the introduction of s 424A and before s 422B came into effect. It was for that reason and because the appropriate time to consider the effect of the appellant's delay in the prosecution of his application to review the Tribunal's decision was on the hearing of the appeal, that his Honour granted the extension of time. (b) The Tribunal ' failed to provide the applicant a reasonable chance to respond to material taken into consideration in reaching its conclusion '. The Tribunal did advise the appellant on 11 September 1997 that it had ' looked at all the papers relating to your application ' but was unable to make a favourable decision. There is nothing before me to indicate that that statement was incorrect. Nor is there any evidence to indicate, if that statement were incorrect, that the appellant relied on it in any way that led to him being denied an opportunity to advance his case. Ordinary principles of natural justice required that it be disclosed to the appellant and that he be given the opportunity to deal with it. Mr Kennett, who appears for the first respondent, does not dispute that proposition. 13 The appellant asserts that there was a denial of procedural fairness in the failure on the part of the Tribunal to inform him that the Tribunal would rely on country information. The Tribunal did put to the appellant the substance of the matters adverse to him that it concluded from the country information. Further, by specifically referring to a particular report and asking the appellant about information contained therein, the Tribunal made it clear to the appellant that it took such information into account and gave the appellant the opportunity to respond. 14 As the hearing took place before the introduction of s 424A , the fact that the Tribunal in its decision referred to the written statement of the appellant submitted with his visa application does not attract the consideration of whether s 424A of the Act was complied with. It is apparent from its decision that the Tribunal put to the appellant its concerns about the information in that statement and its apparent inconsistency with his evidence at the hearing and gave him the opportunity to respond. No complaint is made by the appellant on this basis. The appellant did not speak sufficient English and was assisted by an interpreter. Mr Laba-Sarkis, who is fluent in English, explained that he had been assisting the appellant and that he had translated all of the documents for him and had helped draft written submissions which the appellant sought to file in Court. Mr Kennett did not object to the filing of the submissions and I gave a short adjournment to enable him to read them. He also did not object to Mr Laba-Sarkis addressing the Court. 16 A court has an inherent right in regulating its own proceedings to allow a person, not being a party or a party's lawyer, to conduct a case on behalf of a party where it is desirable to do so in the interests of the administration of justice. However such an application is not granted as a matter of course; Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481. While there are no disciplinary measures available for any lay advocates, in this case it was relevant that the case was complex, the appellant had genuine difficulties in representing himself. Mr Laba-Sarkis was familiar with the matter and I was of the view that Mr Laba-Sarkis would be able to present the case better and more efficiently than the appellant could. In these unusual circumstances, I was satisfied that Mr Laba-Sarkis would be of assistance to the appellant and to the Court and to the efficiency of the hearing. I granted leave for Mr Laba-Sarkis to speak on behalf of the appellant. 17 The written submissions raised a number of factual matters that did not go to jurisdictional error. They recited a series of factual assertions, presumably on the basis that the Tribunal should have accepted them. 18 It is asserted on behalf of the appellant that there was no probative evidence to found the Tribunal's conclusion that the appellant would not face serious harm should he return to Lebanon. That is not the case. The Tribunal cited the appellant's evidence and country information and explained its reasoning in coming to that conclusion. 19 There were a number of references in the written submissions to the Tribunal's asserted knowledge of the appellant's state of health or medical condition at the time of the hearing. It was conceded at the hearing, however, that there was no matter brought to the Tribunal's attention to make it so aware, even assuming that there was an aspect of the appellant's health at that time that affected his evidence. It was submitted that, because of the torture experienced by the appellant, the Tribunal should have treated inconsistencies in his evidence differently. That, however, amounts to merits review. Did the Tribunal consider each of the appellant's claims? Although this arguably went beyond the grounds in the notice of appeal, there was no objection. 21 One such claim was that he was considered an Israeli spy. The Tribunal did consider that claim and did not accept that the appellant was ever genuinely suspected of being an Israeli spy. It gave reasons for that conclusion. 22 The other claim said by the appellant not to have been considered was set out in the Tribunal's decision under the heading "The applicant's case". That was that ' the applicant said that he is in a different position [from men who had served with General Aoun who were serving in the reconstituted Lebanese Armed Forces ('LAF') under General Lahoud with no apparent problems] because he was with Lahoud in Tripoli, then he deserted and joined Aoun's forces in Beirut, and joined the LF. This means that he will be regarded as a traitor and no one will trust him '. Clearly, the Tribunal acknowledged that such a claim had been made. 23 The appellant submits that ' the Tribunal, in its findings and reasons p188, failed to understand the confusing account of the circumstances in which [the appellant] left Lebanon and concluded that the [appellant's] evidence was that the only reason he fears persecution in Lebanon is because he was a soldier in Aoun army '. This is reflected in the Tribunal's statement that ' it is evident from the account of his evidence set out above that the applicant has provided a very confusing account of the circumstances in which he left Lebanon...it is also difficult to make findings as to what actually happened to the applicant prior to his departure from Lebanon, and more particularly, when '. 24 The Tribunal said that the only reason for the claimed fear of persecution was because the appellant was a soldier in General Aoun's army. The Tribunal found as a fact that "all" of the independent evidence supported a conclusion that there is no real chance that the appellant would be arrested, detained or face treatment amounting to persecution by reason of his former service in the LAF under General Aoun. This was the very proposition put to him at the hearing to which he responded. In putting this proposition, the Tribunal referred to country information. Even if it did not show the appellant "all" such country information there was no denial of natural justice for this reason. The appellant was told of the proposition and that it was supported by independent information and had the opportunity to respond. 25 In coming to its conclusion, the Tribunal accepted that there had been reprisals against some of Aoun's soldiers in the immediate aftermath of Aoun's defeat but no subsequent or continuing reprisals. It also noted that "significant numbers" of former Aounist soldiers had been integrated successfully into the newly constituted post-war LAF. It observed that there was no evidence that the appellant would be regarded as an Aoun supporter because of any other activity in which he had been engaged and that independent information stated that there was no evidence to indicate a policy of harassment of individuals solely on the basis of their being Aoun supporters. This dealt with the aspect of the claim that the appellant feared persecution as a former member of General Aoun's army. 26 However, the appellant also claimed that he was not only a former member of that army, he was also a person who had deserted, or would have been considered to have deserted, from the LAF army. This represented a distinct claim and basis of fear of persecution by the appellant. 27 Mr Kennett submits that the consequence of army desertion was encompassed in the appellant's claim that he feared persecution because of his service with General Aoun. Accordingly, in his submission, the Tribunal dealt with this claim. In the alternative, Mr Kennett submits that the appellant did not make a claim of persecution because of his desertion from the army. Rather, he submits, the appellant said he would not be trusted because of his desertion. 28 I do not accept Mr Kennett's first submission, that there was no jurisdictional error by the Tribunal because the Tribunal had determined the risk of harm to a more general social group (former members of General Aoun's army), a subset of which was those members who had deserted the LAF. An analogy can be drawn with the reviewable error the Tribunal committed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 where the Tribunal had failed to deal with an important aspect of the appellant's case: see at [18], [23]-[24] and [27] per Gummow and Callinan JJ and at [49]-[50] per Kirby J. 29 As regards to Mr Kennett's second submission, that no claim to persecution was made by reason of desertion, the evidence before Scarlett FM included an affidavit annexing a transcript of the Tribunal hearing. As a Christian we have to go to the Lebanese Forces, because that is where we would feel more secure. That would be true, but for somebody like me, if I --- if you was with the Lebanese Army in Tripoli and everybody knows you and then you have --- you deserted them, you left them and went to the other Army in Beirut, they would consider this as a traitorship and they would never, ever trust you again because whoever betrayed them the first time could betray them the second time. The appellant's response makes it clear that, unlike other former soldiers of Aoun's army, he claimed to be still at risk. In context, the appellant's comment that because of his desertion he would not be trusted is an indication that he would not get the benefit of the acceptance of former soldiers in the army. I am satisfied that the Tribunal was required, but failed, to consider and make findings in respect of the desertion aspect of the claim made by the appellant and that this desertion claim was not subsumed in the more general claim. Accordingly, the Tribunal decision is infected with jurisdictional error and is not a privative clause decision. The Federal Magistrate was in error in finding that there was no jurisdictional error and that the appellant was out of time in which to appeal rendering the application not competent. 33 The appeal is allowed. The first respondent is to pay the appellant's costs of the appeal. That does not extent to any costs claimed by Mr Laba-Sarkis who was voluntarily assisting the appellant. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

whether tribunal failed to consider claim to persecution made by the appellant by reason of desertion from the army claim not subsumed in the more general claim to persecution by reason of former membership in that army jurisdictional error appeal allowed leave to speak on behalf of appellant discretion in interest of effective, efficient and expeditious disposal of the proceedings leave granted in unusual circumstances migration practice & procedure

There were nonetheless two features of the case that required me to give reasons, which I said I would in due course provide. 2 To put matters into context I will begin with a thumbnail sketch of the facts. Mr Edge was appointed administrator of Eco Panels on 26 October 2005. At the time the company was hopelessly insolvent, having few assets and sizeable debts. Mr Edge's appointment as administrator was confirmed at the first meeting of creditors held on 2 November 2005. Before the second meeting it had been proposed that a deed of company arrangement be entered into between Eco Panels and its creditors. By notice dated 21 November Mr Edge convened the second meeting for 28 November 2005. The meeting should have been held before 15 November 2005: Corporations Act 2001 (Cth), s 439A. It was contemplated that the second meeting be adjourned to 21 December 2005, at which time the proposed deed would be considered. In the event, no deed was put forward and, in accordance with the administrator's recommendations, the creditors resolved that Eco Panels be wound up. Mr Edge became the liquidator for the winding up by reason of s 446A. He informed me that he had all but completed his duties when it was discovered that the second meeting had not been convened within the required time and so there was no valid resolution to wind up the company. 3 In my view this was a compelling case to make an order under s 447A to extend the time within which to convene the second meeting. Realistically there was no alternative to a winding up of Eco Panels. If the faulty attempt to wind up the company were not regularised it was inevitable that it would in short order be wound up either by members or creditors. 4 At one point I thought there was a stumbling block. I was of the tentative view that the application which had been brought on ex parte should not proceed without a defendant and that perhaps a representative shareholder should be joined. In the end I was persuaded to make the order sought ex parte , but I did so on terms that, first, a copy of the order be served on each shareholder and, second, there be a reservation to any shareholder of liberty to apply to vary or discharge order. 5 I will explain why those terms were imposed. This requires a brief discussion of the murky topic of parties and, in particular, the rules regarding when a person must, or may, be joined in an action. 6 Prior to the Judicature Acts, the common law courts required the joinder of all persons "directly and immediately interested in the subject-matter of the suit, and whose interests are of a strictly legal nature. ": Story, Equity Pleadings, 10 th ed, 1892, 77. These persons were described as "indispensable parties" for without them the action could not proceed. Some judges said that in the absence of an indispensable party there was no jurisdiction to make any order. Conversely, persons with only an indirect interest in the outcome of the proceedings were not permitted to be joined. 7 Meanwhile, in Chancery a more flexible doctrine was developing and it is from here that most of the modern rules derive. Parties were divided into "necessary" and "proper". The cases involved joint obligees ( Scaife v Butler (1675) 73 Seld Soc'y 166), joint obligors ( Greenville v Deincourt (1675) 73 Seld Soc'y 304), actions against sureties ( Labrune v Casteel (1676) 73 Seld Soc'y 293) and enclosure actions ( King v Rothwell (1674) 73 Seld Soc'y 108) among others. The bases for the necessary party rule was the avoidance of multiplicity of actions, the avoidance of inconsistent decisions, the efficient use of court time and the need for adequate presentation of the issues and the tendering of all relevant evidence: Lukin v Midleton (1676) 73 Seld Soc'y 340; Scaife v Butler supra; Lebrum v Casteel supra; Ford v Lear (1675) 73 Seld Soc'y 217. 9 The necessary party rule was flexible, up to a point. If it were impossible, inconvenient or unduly burdensome to join a necessary party then non-joinder could be excused. For example, if a party was outside the jurisdiction ( Walley v Walley (1687) 1 Vern 484; 23 ER 609; Quintine v Yard (1702) 1 Eq Ca Abr. 74; 21 ER 886) or outlawed ( Heath v Percival (1720) 1 P Wms 682; 24 ER 570) or if the absent defendants were so numerous that it would be difficult to bring them to court ( Attorney General v Wyburgh (1719) 1 P Wms 599; 24 ER 534) or if the absentee person was evading service ( D'Aranda v Whittingham (1728) Mosely 84; 25 ER 285) joinder was not required. 10 The two principles upon which these decisions were based are explained in Calvert on Parties 2nd ed, 1847. The first principle was a "principle admitted in all Courts of Justice in this country, upon questions affecting liberty, or life, or property; namely, that no proceeding shall take place with respect to the rights of anyone except in his presence. " The second principle was "that when a decision is made, it shall provide for all the rights, which different persons have in the matters decided. For a Court of Equity, in all cases, delights to do complete justice, and not by halves; to put an end to litigation, and to give decrees of such a nature, that the performance of them may be perfectly safe to all who obey them. ": Calvert at 2-3. 11 As the jurisdiction of the Chancery courts extended to the grant of declarations and injunctions which, by their nature, could affect the rights or obligations of third parties, it was necessary to provide for the joinder of persons in addition to the necessary parties. These persons were called "proper parties". 12 A proper party is a person who has sufficient connection to the controversy that he might appropriately be joined, but whose absence will not affect the constitution of the action. A commonplace example is a person who has no direct interest in the controversy between the plaintiff and defendant but who may be adversely affected by an order that is sought, such as the grant of an injunction or the appointment of a receiver. Cretanor Maritime Co Ltd v Irish Marine Management Ltd [1978] 1 WLR 966 contains an example of such a person. 13 Since the Judicature Acts, the equitable rules, to the extent that they differ from the common law rules, have prevailed. For the most part those rules are now embodied in formal rules of court. The general rule that now governs proceedings in the Federal Court is that all persons "whose joinder as a party is necessary to ensure that all matters in dispute ... may be effectually and completely determined and adjudicated upon" should be joined in the proceeding: Federal Court Rules O 6, r 8(1); Grosvenor v Permanent Trustee Co of NSW Ltd (1966) 40 ALJR 329. In Pegang Mining Co Ltd v Choong Sam [1969] 2 Malayan Law Journal 52, Lord Diplock, speaking for the Judicial Committee of the Privy Council, discussed the rule on which O 6 r 8 is based. To achieve this object calls for a flexibility of approach which makes it undesirable in the present case, in which the facts are unique, to attempt to lay down any general proposition which could be applicable in all cases. While their Lordships agree that the mere fact that a person is likely to be better off financially if a case is decided one way rather than another is not a sufficient ground to entitle him to be added as a party, they do not find the dichotomy between "legal" and "commercial" interests helpful. A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action? 14 Now, it occurred to me that shareholders of Eco Panels, while not necessary parties, could have been joined as proper parties as their interests would be indirectly affected by a winding up. An alternative basis for their joinder may have been the need for a contradictor. In the end I decided no-one need be joined. None of the shareholders was to be factually affected by the order. Their presence may have been desirable, but it was not necessary. This notwithstanding, the shareholders had a sufficient interest in the subject matter of the application that they were entitled to notice of it in case one of them wished to be heard. It was for that reason I made the additional orders. 15 The second matter that requires mention is the conduct of Mr Edge. In his first affidavit in support of the application Mr Edge deposed that he had not received any complaint in relation to his actions as administrator or liquidator of the company and that it was not until quite late in the piece that he discovered the second meeting had not been convened within time. These statements were inaccurate. Complaints have been made about Mr Edge's conduct so much so that an application is currently before the Supreme Court of Victoria for him to be removed from office. As well, he had been advised of the problem about the second meeting quite some time ago. When these inaccuracies were pointed out by the Australian Securities and Investments Commission, Mr Edge filed a second affidavit providing an explanation. In the end, it was not necessary for me to go into the matter as it had no direct bearing on the application and, in any event, would be dealt with by the Supreme Court. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

company in administration resolution to wind up resolution out of time time extended parties distinction between indispensable, necessary and proper parties corporations practice & procedure

Mr Guest says the amounts claimed in each year were interest accrued under a loan agreement and were incurred in gaining or producing assessable income or in carrying on a business for the purpose of gaining or producing assessable income. 2 In June 1987 Mr Guest invested in a project for the growing of blueberries at Corindi, near Coffs Harbour in New South Wales. In very broad terms, the scheme (this term is not used in any pejorative or tax law sense) involved borrowing monies to fund his investment and paying back initially two relatively small payments with the expectation that the balance would be repaid out of the proceeds of the sale of fruit, without recourse to the borrower. However, if those initial payments were not made on time, which Mr Guest says was the case, he would become personally liable for the balance of the loan and interest thereon. 3 The project did not prosper. Receivers were appointed to the companies involved. Mr Guest no longer received proceeds from the sale of fruit. An assignee of the loan sued Mr Guest and other investors for the principal and interest alleged to be due. The assignee's claim was ultimately settled on Mr Guest's undertaking to pay a lesser amount by instalments. 5 The joint venture deed. Mr Guest and the other individuals agreed with Corindi Blueberry Growers Pty Ltd to enter into a joint venture for the production of blueberries on land owned by the latter. Mr and Mrs Guest each had a one-sixth share and the other two investors one-third each. Corindi Blueberry Growers granted to Mr Guest and the other individuals a non-exclusive licence to occupy its land for the purpose of blueberry production. Five hundred trees were to be allocated to Mr Guest and the other individuals (the project as a whole involved hundreds of other investors). Mr Guest and the other individuals were entitled to receive the whole of the proceeds of sale of the fruit until 31 March 1992. Thereafter they would receive 70 per cent with the balance going to Corindi Blueberry Growers. The joint venture would continue until 31 March 1997 and was terminable thereafter on three months notice. 6 The maintenance agreement . Mr Guest and the other individuals agreed with Johnson Farm Management Pty Ltd for it to conduct the blueberry growing operations on their behalf in return for a fee which was to be discounted if prepaid by certain dates. If paid by 15 July 1987, the aggregate amount of management fees for the first three years was approximately $60,000. This prepayment would attract an immediate tax deduction. 7 The sale of fruit agreement. Mr Guest and the other individuals agreed to sell all their fruit to Kathleen Drive Stonefruit Growers' Syndicate No 1 Pty Ltd at a predetermined price for a period of five years. Under a term of this agreement the individuals directed the buyer to pay the proceeds to Rural Finance Pty Ltd (see [9] below). 8 The pooling agreement . Mr Guest and the other individuals and Corindi Blueberry Growers agreed with Johnson Farm Management that fruit grown by the joint venture could be pooled with fruit from other plantations managed by the latter. 9 The loan agreement. Rural Finance agreed to lend Mr Guest and the other individuals $55,000 to enable them to prepay the management fee due to Johnson Farm Management. The loan was for a period commencing on the date of the agreement and, subject to the provisions for periodic repayment, the balance of the principal sum and any other monies outstanding were payable on 31 March 1992. 10 The borrowers agreed to pay sums of $5000 on each of 30 September 1987 and 31 December 1987 in reduction of the principal sum. The balance and any interest thereon was to be paid by direct deductions from the proceeds of sale (if any) of the borrowers' fruit pursuant to the sale of fruit agreement. 11 If the two $5000 payments were made on time, Rural Finance would have no rights against the borrowers personally for repayments of principal or interest; its only recourse would be against fruit sale proceeds. (i) hereof [the two sums of $5000] by the due date for the repayment of each such sum (or such further time as the Lender shall at his sole discretion allow) the Lender shall have no right of recourse against the Joint Venturer and the Joint Venturer shall have no other personal liability for payment of balance of the Principal Sum or Interest owing under clauses 3a(ii) and (iii) or any other costs, charges or expenses whatsoever in respect of the balance of the Principal Sum other than out of the proceeds from sale of Fruit as provided in sub-clause 3 B(ii). 13 The loan agreement does not explicitly state whether or not the liability of the borrowers is joint and several. 14 The share option agreement. Johnson Farm Management granted options to Mr Guest and the other individuals to take up 1500 shares. While it is not in doubt that he made payments about this time, on the issue as to the precise dates of payment there is a contest as to the admissibility of certain evidence and the inferences to be drawn from such evidence as is admissible. If the payments were made on time, Mr Guest would not be personally liable thereafter to the lender for any amounts, including the interest payments for which he claims deductions. This case therefore presents the unusual picture of a borrower seeking to establish that he did not make repayments by the due date. On appointment they took control of all of the business records of Rural Finance. Among those business records were documents 1, 2 and 3. 18 Loan Account Statements . He does not know who made the notations on the documents. Nor is there any other evidence as to the identity of such person. 22 On behalf of Mr Guest it is submitted that the Loan Account Statements and the notations thereon, although hearsay, are admissible under s 69 of the Evidence Act 1995 (Cth) and/or s 1305 of the Corporations Act 2001 (Cth). 23 Under s 69 the first question is whether the documents at any time formed part of the records belonging to or kept by Rural Finance in the course of or for the purposes of its business (s 69(1)(a)(i)). If so, were the representations constituted by the notations as to the receipt of the cheques made "by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact [i.e. as to the receipt of cheques on the dates indicated]" (s 69(2)(a))? 24 The Loan Account Statements on their face purport to be documents recording financial transactions, namely loans, involving Rural Finance. They are "records" in the sense that they are part of a repository of information in organised form which is accessible in the ordinary course of a business and for the purposes of that business: Karmot Auto Spares Pty Limited v Dominelli Ford (Hurstville) Pty Ltd (1992) 35 FCR 560 at 565. The Receivers found the documents amongst the business records of Rural Finance when they took control of those records. I find that they were part of Rural Finance's records within the meaning of s 69(1)(a)(i). 25 The terms of s 69(2)(a) do not suggest that it is an essential precondition of admissibility that the "person" in question be identified. The ordinary meaning of the language is that it is sufficient that the person who made the representation, whoever he or she is, had or might reasonably be supposed to have had, personal knowledge of the asserted fact. The policy behind the provision is clear enough. Routine business records, made before any legal proceeding arises or is contemplated (cf the exception in s 69(3)), have an inherent likelihood of reliability which outweighs the common law's aversion to hearsay evidence where the maker of a statement cannot be tested by cross-examination. The utility of s 69 would be greatly diminished if it were necessary to locate among large organisations, perhaps over a long period of time, persons who made representations, often in circumstances where the practical needs of the organisation did not require any identification at the time the representations were made. 26 Prior to the Evidence Act , all Australian jurisdictions had legislation based on provisions of the Evidence Act 1938 (Imp) which rendered admissible statements made in documents outside court where, inter alia, the document formed part of a continuous record. Examples were the Evidence Act 1898 (NSW) ss 14B-14C and the Evidence Act 1958 (Vic) s 5. Such legislation required the maker of the statement to be called as a witness, although that requirement could be dispensed with in certain circumstances, such as death or absence "beyond the seas". The present s 69 , however, says nothing about calling the maker of the statement as a witness. It is therefore hard to see why one should read into the section an obligation to identify the "person" where there is no need for that person to be called. 27 In Lee v Minister for Immigration and Multicultural Affairs [2002] FCA 303 there was an issue as to whether a notice of a decision was sent by the Minister to the applicant by a certain date. One piece of evidence relied on by the Minister was a copy, produced from the departmental files, of a letter addressed to the applicant advising of refusal of the application and enclosing the reasons for that refusal. He inferred that somebody at Australia Post informed somebody at the Department on 20 March 2001 that the letter was in the delivery centre of Australia Post on that date. His Honour admitted the notation under s 69(2)(b) as being made in the course of the Department's business on the basis of information directly supplied by a person from Australia Post who might reasonably be supposed to have had knowledge of the asserted fact, namely that on 20 March an envelope containing the letter was in the delivery centre of Australia Post. On appeal it was not necessary for the Full Court to consider this particular ruling: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305. 28 Hely J's reasoning applies equally in the present case where s 69(2)(a) is relied on and it is the person who made the notation who is the one who must reasonably be supposed to have knowledge of the relevant asserted fact, viz that the cheques were received by Rural Finance on the dates indicated. The receipt of a cheque in the mail is a routine event. In the present context, the actual date of receipt would be an important matter for Rural Finance, calling for a contemporaneous note to be made. It might reasonably be supposed that the person who made the notation had personal knowledge of that fact. 29 Other authorities supporting the proposition that the "person" need not be identified are Duke Group Ltd (in liq) v Arthur Young (1990) 55 SASR 11 and Australian Securities and Investments Commission v Rich [2005] NSWSC 417 ; (2005) 216 ALR 320 at [197] . To the extent that Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 685 at [52] held that identification of the person referred to in s 69(2) is an essential prerequisite for admissibility I would respectfully disagree. 30 Senior counsel for the Commissioner referred to the detailed discussion of recent authorities by Austin J in Rich at [95]-[118]. However, that analysis rather focussed on the question of authentification, in the sense of provenance, and whether, as Bryson J held in National Australia Bank Ltd v Rusu [1999] NSWSC 539 ; (1999) 47 NSWLR 309, authentification cannot be achieved solely by drawing inferences from the face of the document itself where there is no other evidence to indicate provenance. Whether that be correct (as Austin J points out, there has been subsequent criticism of such a view) there is adequate authentification here in the evidence of the Receiver who physically located the document among the business records of Rural Finance; see Evidence Act s 58. 31 In this context I note that senior counsel for the Commissioner referred to various criticisms of the quality of Rural Finance's accounting systems. Whether valid or not, such criticism does not affect the admissibility of the document under consideration. Section 69 is not confined to business records kept in accordance with the best accounting standards. At most, such defects as there may be in record-keeping go to weight. Whatever shortcomings there may otherwise have been in Rural Finance's accounting systems, the particular documents in question here are simple ones which record simple facts, basic to any money-lending business. If otherwise admissible, there is no ground for rejecting them, as senior counsel urged, under the discretion conferred by s 135(b) of the Evidence Act . The evidence that the cheques were received on 2 October 1987 and 4 January 1988 is not misleading or confusing; on the contrary, it is straightforward and direct. 32 The documents are also admissible as books kept by a body corporate under a requirement of a predecessor of the Corporations Act and are admissible under s 1035 of that Act; see ss 5(1) and 267 of the Companies (New South Wales) Code . 33 Rural Finance letter 9 October 1987 . This clause states clearly that the continuing non-recourse nature is conditional upon the principal repayments being made by the due date. Our records indicate, in fact, that you were late in effecting your repayments and accordingly we advise that the non-recourse provisions are no longer in effect. The result is that the company holds you personally liable for the remainder of the loan principle and interest accruing thereon. Mr Guest denies having received it. That may be due to the fact that it appears to have been sent to the address of Mr Melloy. But its admissibility, and indeed its relevance, does not depend on whether or not Mr Guest received it but rather its presence among the business records of Rural Finance. There is every reason to suppose that the Managing Director would have personal knowledge of the date the first cheque was received since this would have important consequences for Rural Finance's rights. The letter is admissible under ss 69 and 1035. The s 135(b) discretion should not be exercised. This document is headed "Rural Finance Investors Ledger as at 30.06.08 Joint Venture June 1987". There are a number of columns and details under each column in respect of many investors. The entry for Mr Guest's investment is included in the line identified by the name of his fellow investor Mr Melloy and the number of trees (500). Again, the identity of the person who made the entries in the Investors Ledger is not known. As a whole, the Investors Ledger appears to be a document in which routine, and indeed meticulous, entries are made by a person who would have personal knowledge of the relevant facts. It is admissible under ss 69 and 1035. There is no basis made out for discretionary exclusion. 37 Rural Finance Loans Spreadsheet . This document and the following one were compiled in November 1992 by employees of KPMG after the appointment of the Receivers. They are nevertheless records kept by Rural Finance for the purposes of ss 69 and 1035: Rich at [266]-[272]. The document records the payments in question as being due on 30 September and 30 December 1987 and paid on 2 October 1987 and 4 January 1988. 38 It was argued that the document was prepared for the purpose of conducting, or in contemplation of or in connection with, a "proceeding" and thus excluded from the operation of s 69 by virtue of subs (3). "Proceeding" is not defined in the Act . Presumably it means litigation. The identity of the person who compiled the document is not known. There is no evidence as to what he or she in fact contemplated; cf Lee in the Full Court at [27]. There is no reason to conclude that such persons contemplated litigation at the stage the entries were made. The more natural inference is that the document was prepared as a matter of routine to assist the Receivers in an understanding of the financial position of Rural Finance and to seek payment of amounts due. Whether or not litigation might ensue in respect of any particular debtor was a matter for the future. 39 In any case, the s 69(3) exclusion does not apply to documents admissible under s 1305. 40 Loan Recourse Register . This document, which includes details of the dates of payments, is admissible for the same reasons. 41 Findings as to dates of payments . Argument proceeded on the implicit assumption, with which I agree, that Mr Guest would have satisfied his obligations under the loan agreement if his cheques were received by Rural Finance on or before the stipulated dates. I no longer have my bank account statements for that period, so I am not able to say for certain on what date I made the payment. I note in this regard that the terms of the loan agreement would make Mr Guest personally liable even if only one of the two payments were late. 44 The reference to withdrawing money before the due date rather suggests payment in cash. This seems unlikely, given that Mr Guest lived in a Melbourne suburb and Rural Finance was based in provincial New South Wales. Perhaps Mr Guest withdrew cash and gave it as his contribution to a fellow investor who sent a cheque. In any event, there is no evidence at all of the payments being received by Rural Finance by the due dates. The documentary evidence, and in particular documents 1, 2 and 3, is consistent and persuasive to the contrary. (The second payment seems to have been received on 4 January 1988 and banked the following day. ) The fact that Mr Guest for a time resisted, or at least did not admit, the claim by the assignee does not logically tend to show that the payments were in fact made by the due dates. Indeed it appears from recital F of the deed of settlement of the litigation (see [57] below) that Mr Guest had not been required to file a defence to the claim of the assignee of the lender and had not done so. 45 I am satisfied that both amounts of $5000 were paid after their due dates. 46 Further time allowed? At a late stage of the case senior counsel for the Commissioner advanced the argument that Rural Finance had, in its discretion, allowed further time for payment, as contemplated by the terms of cl 3B(iii). In support of this he said that the payments "were no more than a couple of days late", that it was "never intended that amounts other than the two initial payments would be paid" and that the two columns in the Investors Ledger are headed "Repaid 30/09/87" and "Repaid 31 /12/87". 47 Since there is no suggestion that Mr Guest was notified of, let alone relied on, any such exercise of discretion, no question of waiver or estoppel could arise. The supposed exercise of discretion would presumably have to constitute an election by Rural Finance to accept late payment and forego its contractual right to personal recourse against Mr Guest. Such an election would, as senior counsel said, have to be inferred from all the circumstances. 48 There is no logical reason why Rural Finance would want to extend such a major indulgence to Mr Guest, especially as he never asked for it. The contemporary documents, and in particular the Rural Finance letter of 9 October 1987, are flatly contradictory of the suggested election. The headings "Repaid 30/09/87" and "Repaid 31/12/87" have the obvious function of indicating what amounts are due to be paid on those dates. They cannot sensibly be read, as the Commissioner's argument maintains, as a predetermined, typed statement that all payments, however late, will be treated as having been paid on those dates. 50 The Receivers took over the total control of the project on behalf of Equus. They ceased applying the proceeds of fruit sales in reduction of Mr Guest's loan with Rural Finance. 51 Under the Receivers the project ultimately proved to be profitable. In December 1995 they sold it to a publicly listed company. 52 In 1993 and again in 1996 the Receivers advised Mr Guest that he was liable for repayment of principal and interest under the Rural Finance loan. 53 On 22 August 1996 the Receivers offered Mr Guest and the other three individuals a complete discharge of the loan on payment of 20 per cent of the amount then owing. This would have been some $7,698. The Receivers warned that if the offer were not accepted they were proposing to sell the entire loan book to a third party which would be likely to pursue vigorously the entire amount owing. The offer was not accepted. There is no evidence as to the reason why. On 20 November Equus notified Mr Guest of the assignment and demanded payment of the amount outstanding. 55 On 27 March 1998 Equus commenced proceedings in the Supreme Court of Victoria against Mr Guest and the other three individuals seeking principal and interest due pursuant to the loan agreement in the amount of $47,145. 56 On 14 March 2002 Equus sent an invoice to Mr Guest and the other three individuals asserting an interest rate of 19 per cent, a balance as at 31 March 1991 of $17,302.21 and interest amounts to 31 March in each of the subsequent years. The total balance owed as at 31 March 2002 was stated to be $117,251.42. By cl 7.2, in exchange for a full and final settlement of all of Equus' claims against him, Mr Guest admitted that the amount owing under the loan agreement as at 31 March 2002 including accrued interest, was $117, 251.42. 58 Mr Guest agreed to pay $17,000 by 31 December 2002 and six subsequent payments of $7,000 on 31 December in each of the following years. In default of any such payment, the full amount then owing would become due and payable. The Commissioner allowed such deductions. 60 From 1992 onwards Mr Guest received no income from the Corindi project. 61 For the tax years 1992 to 1997 Mr Guest made no claim for deductions in relation to the Rural Finance loan. Other issues may arise in relation to the calculation of interest. These are to be the subject of further submissions. 64 During the years 1998 to 2001 Mr Guest made no payment of interest or principal to either Rural Finance or Equus and made no admission of liability to make any such payments to Equus as claimed in the Supreme Court proceedings. Was the interest a loss or outgoing incurred by Mr Guest? 2. Was the interest liability incurred by him in gaining or producing assessable income? 3. Was the interest liability incurred by him in carrying on a business for the purpose of gaining or producing assessable income? Issue 1 --- loss or outgoing "incurred"? The interest which accrued under the loan agreement during the relevant years was therefore "incurred" by him. In those years they were presently existing liabilities: Nilsen Development Laboratories Pty Ltd v Federal Commissioner of Taxation [1981] HCA 6 ; (1981) 144 CLR 616 at 627. 67 Senior counsel for the Commissioner argued that following the maturity of the loan the amounts due were not interest but damages for the loss of use of money: Cook v Fowler (1874) LR 7 HL 27. 68 As a matter of construction of the loan agreement, this argument fails at the outset. The case is to be distinguished from Gair v Federal Commissioner of Taxation [1944] HCA 29 ; (1944) 71 CLR 388 where the mortgage provided for the payment of interest for a period of one year, but there was no covenant to pay interest thereafter. 69 What was alleged to be owing by Mr Guest in the writ and the invoice of 14 March 2002 and admitted to be owing in the deed of settlement, was interest. There is no mention of damages. Nor in any of the authorities hereafter mentioned was it suggested that liabilities incurred after the term of the loan in question were for damages rather than interest. 70 In any event, if the amount owed was damages rather than interest, it would be for the same amount. Damages incurred in the course of conducting a business, such as, for example, libel damages paid by a newspaper company, are deductible: The Herald and Weekly Times Ltd v Federal Commissioner of Taxation [1932] HCA 56 ; (1932) 48 CLR 113. 72 A line of cases supports the proposition that a loss or outgoing may be deductible even if it is incurred some years after the associated business, or the taxpayer's involvement in it, has ceased: Placer Pacific Management Pty Ltd v Federal Commissioner of Taxation (1995) 31 ATR 253, Federal Commissioner of Taxation v Brown (1999) 99 ATC 4600, Federal Commissioner of Taxation v Jones (2002) ATC 4135, and R & D Holdings Pty Ltd v Deputy Federal Commissioner of Taxation (2006) ATC 4472. In Placer the claimed deduction was for a payment in settlement of litigation in respect of defective goods supplied. In the other cases it was for interest on a business related loan. 74 In the present case the Commissioner argues that some intervening event or act has broken the nexus between the income-obtaining activity and the outgoing in question. 75 The concept of a break in the nexus was applied in Commissioner of Taxation v Riverside Road Lodge Pty Ltd (in liq) (1990) 23 FCR 305. In 1970 the taxpayer company borrowed money to acquire land and construct a motel. There were repayments and further borrowings. In 1979 the taxpayer transferred the property to the trustee of a unit trust, the beneficiaries of which were the shareholders in the taxpayer. The consideration for the transfer was the current value, payable on demand, interest free. The trustee then leased the property back to the taxpayer, which continued to conduct the motel business. The disputed deduction was for interest on pre-1979 loans incurred after the transfer. 76 The Full Court (Northrop, Wilcox and Hill JJ) observed (at 314) that the case was not one where the activities of the taxpayer in operating the motel ceased during any relevant year of income. However, in 1979, as a result of the sale and lease-back, the character of the activities of the taxpayer changed. Before, it was an owner/operator of a motel; afterwards it was an operator of a motel owned by others and of which it was only a tenant. The Full Court disagreed with the view of the trial judge that the 1979 change was not sufficient to change the relationship between the interest payments and the business activity. The interest outgoings ceased to be "relevant and incidental" to the business activities engaged in by the taxpayer after 1979. They had "no real connection at all with the business of running a rented motel" (at 315). 77 In Brown the taxpayers borrowed money to fund the purchase of a delicatessen. They sold the business in 1990 but the proceeds were not sufficient to discharge the loan. They continued to pay interest until the loan was discharged in 1995. The Full Court (Lee, RD Nicholson and Merkel JJ) upheld the decision of the trial judge that there was a sufficient connection between the occasion for the payment of interest and the carrying on of the business. On the appeal, the Commissioner had argued that once the business had ceased the payment of the interest was not to be found in the carrying on of the business but in the voluntary decision of the partnership not to repay the loan and to continue to pay interest instalments (at [15]). 78 Their Honours reviewed the case law, and in particular the decision of the High Court in Steele v Deputy Commissioner of Taxation (1999) 197 CLR 449. They applied (at [20]) the statement of the High Court, adopting what was said by Lockhart J in Federal Commissioner of Taxation v Total Holdings (Aust) Pty Ltd (1979) 79 ATC 4279 at 4283, that a taxpayer may be entitled to a deduction after a business has ceased, provided the occasion of a business outgoing is to be found in the business operations directed towards the gaining or production of assessable income generally. However, cessation of business may be of factual importance. Their Honours (at [24]) concluded that the trial judge was correct in determining that the occasion for the loss or outgoing in question was the payment of interest which the taxpayers were obliged (their Honour's emphasis) to pay under the loan contract. In our view his Honour was correct in characterising the occasion for the liability in such circumstances as depending upon the terms of the contract rather than upon whether or not the partners might or might not have availed themselves of an opportunity to repay the loan on a particular day because of an indulgence shown by the lender on that occasion. In that regard, it is significant that the partners did apply the net proceeds of sale in repayment of the loan and his Honour did not appear to be prepared to find that the taxpayer and his wife had any other partnership assets which were available, had the Bank agreed, to discharge the loan when, or even after, the partnership business ceased. Had the loan agreement in question been a 'roll over' business loan facility which entitled the taxpayer conducting the business, on the date of each monthly payment, to elect to repay the principal and thereby avoid incurring liability for interest or to 'rollover' the loan and continue to be liable for interest, that may have been a different situation. In that circumstance there may be considerable force in a contention that the occasion of the liability was the election to 'roll over' the loan on each monthly payment date, rather than any liability arising under the terms of the original loan agreement establishing the terms of the 'roll over' facility. In such a case the cessation of the business or sale of the income-producing asset acquired with the borrowed funds might properly be regarded as breaking the nexus in much the same was as certain post cessation interest payments were not allowed as deductions in Riverside Road . However, as explained earlier, that is not the situation in the present case. They took out a loan with the ANZ Bank in 1990. In 1992 the husband died. In 1993 the business ceased. The wife recommenced full-time employment as a nurse using more than half her after tax income to repay the loan. In 1996 the wife refinanced the loan with another lender to obtain a lower interest rate. The Full Court (Beaumont, Finn and Sundberg JJ) upheld the wife's claim for deductions of interest for the years 1993-1998. 81 Their Honours (at [10]) rejected the Commissioner's argument that the taxpayer only became obliged to pay interest in the years in question because she chose not to repay the principal sum and that the "occasion" for the interest repayment was each periodic decision to keep the loan on foot. They did so for two reasons. First, the loan was for a fixed term and was not dependent on periodic decisions on the taxpayer's part to keep it alive. Secondly, she did not have the financial capacity to do so. All it decided is that, in the circumstances of that case, which involved a distinct change in business activity during the currency of the loan, interest continued to be deductible after the cessation of the business for which the loan was incurred because the taxpayer was contractually bound to pay interest until the loan was repaid. They observed (at [17]) that in the instant case the taxpayer had no free choice between continuing the loan and repaying it. In any event ... the loan in the present case was not a 'rollover' business loan facility, but one that would run for the agreed term unless the taxpayer decided to repay early. Since the onus of showing that his assessments are excessive lies on him, if it is necessary for him to show that non-repayment of the loan was due to impecuniosity then his appeal must fail. 85 However, the authorities do not in my view establish that, as a matter of law, interest on a business-related loan ceases to have that character once an opportunity to repay the loan is not taken, the only exception being where the failure to repay is due to the taxpayer's impecuniosity. 86 Here the occasion of the borrowing from Rural Finance and the consequent interest liability was undoubtedly to be found in business operations directed towards the gaining or producing of assessable income. The cessation of the taxpayer's involvement in the business did not in itself retrospectively alter the occasion of the borrowing. Apart from cessation, there was no event which altered the taxpayer's relationship to the business, such as occurred in Riverside Road . In 1987 Mr Guest became obliged to pay interest on a business-related borrowing. The obligation arose from his entering into the loan agreement and failing to make the two $5000 repayments on time. In the tax years in question his liability for interest arose under the same obligation. He owed the interest in his capacity as borrower of the same loan to a successor in title of the original lender. Apart from the sheer passage of time argument, the interest liabilities had a "real connection" with Mr Guest's blueberry growing business. 87 The point may be illustrated by a hypothetical example. A taxpayer has a business- related loan. While the business is still operating, the term of the loan comes to an end. The taxpayer has the resources to repay the loan, but decides not to, perhaps because the interest rate is favourable, or perhaps he simply overlooks the matter. The interest would continue to be deductible. There seems no logical reason why a different result should occur in a situation where the business has ceased. 88 There remains the argument based on sheer passage of time. There may come a time when the period between cessation of business and payment or incurring of interest is such that in all the circumstances the payment is "no longer sufficiently proximate to the activities of the business to be deductible": Brown at [25]. As senior counsel for the Commissioner accepted, the period cannot be precisely stated. The answer must depend, as was said in Brown at [25], upon commonsense or practical weighing of all the factors. 89 In itself the period of time in the present case is substantial, but it is not really disproportionate to the periods that have been considered not sufficient to destroy proximity in other cases; see [73] above. At the most, the period in this case might be said to be approaching the outer limits. Also there is the factor that from the point of view of the lender and its successors willingness to enforce the loan was never abandoned, either by the Receivers or Equus. It is not as though some commercial archaeologist came across a long forgotten loan and set about recovery. If, as I find to be the case, Mr Guest succeeds under (a) he does not need to establish the carrying on business element of (b). Nevertheless, I find that this element has been satisfied. 91 It is true that there is no evidence that Mr Guest ever visited the blueberry farm or did anything to participate in the business other than sign documents, pay some money, return income and claim deductions. 92 This does not mean, however, that Mr Guest was not carrying on business. He did so by engaging his agent Johnson Farm Management for that purpose: qui facit per alium facit per se ; see also Commissioner of Taxation v Sleight [2004] FCAFC 94 ; (2004) 136 FCR 211 at [46] - [61] , the facts of which are quite similar to the present case. Mr Guest's involvement in the blueberry growing at Corindi was comparable to that of English absentee landlords of Irish estates in the nineteenth century. They conducted their business through the medium of agents such as Captain Hugh Boycott, who gave his name to the language. 93 The blueberry project involved the motive of profit, albeit not immediate, repetition of activities, systematic organisation, and the investment by Mr Guest and the other three individuals of significant amounts. This was not a hobby.

allowable deductions claim for interest accrued in 1998-2001 on loan for business purposes taken out in 1987 cessation of involvement in business in 1991 taxpayer only liable for principal and interest if two early repayments not made on time income tax

A preliminary issue that has arisen in this case is whether this common law principle is attracted. More particularly, the question is whether the applicant, Avzur Hotels Pty Ltd, has standing to sue the first respondent, Ivanhoe Entertainment Pty Ltd, for damages for breach of contract. It has been agreed that this question should be determined before trial. The contract in question is a sale of business agreement dated 23 February 2007. The business is that of a hotelier conducted at 120 Upper Heidelberg Road, Ivanhoe. The original contracting parties to the sale agreement are Ivanhoe Entertainment as vendor, Taylor McKay Pty Ltd as purchaser, and the second and third respondents, Mario Scerri and John William Weekley, as warrantors. Ricky John Munday and John William Upham guarantee the purchaser's obligations under the agreement. By the sale agreement Ivanhoe Entertainment sold the business to Taylor McKay for approximately $15 million. The sale agreement contains certain warranties concerning the business' takings and expenses. Avzur Hotels sues for the breach of the warranties. It also seeks to recover damages in other causes of action. While Avzur Hotels was not an original party to the sale agreement, it came into the picture in the following way. The form requires the insertion of the following details: "Vendor", "Purchaser", "Purchaser's Guarantors", "Business", "Nominee" and "Date of Agreement". Clause 13.1 makes the sale agreement conditional upon Tattersall's Gaming Pty Ltd granting the purchaser a venue operators agreement to operate 100 gaming machines. The clause goes on to provide (at cl 13.5) that: "Where the Purchaser nominates a substitute or alternative purchaser under clause 41, all references in clause 13 to 'the Purchaser' shall be read and construed as 'the Purchaser or the Nominees'". When the sale agreement was executed, the vendor knew that Taylor McKay intended to appoint Avzur Hotels as substitute purchaser. This is apparent from the annexures to the sale agreement. For example: (a) Annexure A (the nomination form) and Annexure B (the guarantee) specify that Avzur Hotels is the nominee (and will therefore be appointed as substitute purchaser); (b) Annexure B identifies the guarantors (i.e. the directors of Avzur Hotels) by name; and (c) Annexure C (an acknowledgment that confidential information relating to the business will be kept confidential which, in accordance with clause 42, must be signed by the directors of the substitute purchaser if that purchaser is a company) also identifies the directors of Avzur Hotels as the persons providing the acknowledgement. In the event, the execution of the sale agreement and the nomination of Avzur Hotels occurred simultaneously or almost simultaneously. It is by reason of its nomination that Avzur Hotels asserts title to sue for breach of the agreement. Its standing to sue depends upon whether the nomination clause authorises Taylor McKay to nominate a purchaser to stand in its place, or as a co-purchaser, under the sale agreement or whether the effect of the nomination is simply to nominate the person who will take a transfer of the business. Ordinarily when a purchaser is described as "A or his nominee", A is treated as having the power to nominate the person to whom the property purchased is to be transferred. The nominee does not become a party to the contract, much less a party with the rights and obligations of the purchaser: Tonelli v Komirra Pty Ltd [1972] VR 737. On the other hand, a contract may permit the purchaser to nominate a person that will stand in his place as the purchaser but, of course, under a novated contract: Salter v Gilbertson [2003] VSCA 1 ; (2003) 6 VR 466 , 473-475; Commissioner of State Revenue v Politis [2004] VSC 126 at [16] . A nomination clause will have that effect only if it clearly so provides: Harry v Fidelity Nominees Pty Ltd (1985) 41 SASR 458 , 460 per King CJ ("I would be most unwilling to construe a contract as containing a provision of such unusual character [a substitution clause] ... unless the language of the contract was quite clear"); Lambly v Silk Pemberton Ltd [1976] 2 NZLR 427 , 432 per Cooke J ("And in the absence of compelling language I do not think the court should impute to the parties an intention to allow an original signatory to substitute for himself a man of straw"). In Salter v Gilbertson (at 473) Phillips JA adopted the need to show a "compelling language" test. How then is the sale agreement to be construed? Does it permit the appointment of a purchaser in substitution for, or in addition to, Taylor McKay or is the nomination no more than a direction to the vendor to transfer the business to the nominee? In Harry v Fidelity Nominees Pty Ltd at 460 King CJ said: "The notion of a vendor binding himself to accept an unknown nominee in place of the named purchaser as the party to whom he must look exclusively for the performance of the contract is unusual. " But, as the applicant has pointed out, Ivanhoe Entertainment did not bind itself to an "unknown nominee". There is no doubt that Ivanhoe Entertainment knew the identity of the "substitute purchaser". Avzur Hotels and its directors were named in the annexures. The following clauses from the various documents to which reference has been made show that a nominee may be a purchaser either in substitution for, or in addition to, Taylor McKay: (a) Clause 41 of the sale agreement describes the nominee as a "substitute or additional purchaser"; (b) Clause 41 of the sale agreement and the nomination form both provide that the purchaser and the nominee are to be jointly and severally liable for the performance of the obligations of the purchaser under the sale agreement; (c) Clause 3 of the guarantee provides that the guarantor guarantees the performance by the nominee of "all terms and conditions of the contract"; and (d) Clause 13.5 of the sale agreement specifies that, where the purchaser nominates a substitute purchaser, for the purposes of clause 13, "the Purchaser" means "the Purchaser or the Nominee". When read in isolation, the form of nomination adopted by Taylor McKay is ambiguous at least as regards the position of its nominee. The form provides that the nominee is the " substitute purchaser to take a transfer of the Business in lieu of the Purchaser" (emphasis added). The form is ambiguous to the extent that it fails to make clear which option is being pursued: is the nominee to be a substitute purchaser or is he simply taking a transfer of the business? But, when read in the context of the remainder of the nomination form, as well as the provisions of the sale agreement and guarantee, it is clear that the nominee (Avzur Hotels) was intended to be a substitute purchaser with all the rights and obligations attached to that position. In the circumstances, Avzur Hotels should have its costs of the reserved question. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

contract for sale of business contract containing a nomination clause effect of contracts

That application was refused on 7 December 2006 and the now Appellant lodged an application for review with the Migration Review Tribunal on 28 December 2006. 2 The Migration Review Tribunal on 19 June 2007 affirmed the decision not to grant a Bridging A (Class WA) visa. The Federal Magistrates Court dismissed an application seeking to impugn the Tribunal decision: SZJOH v Minister for Immigration & Citizenship [2007] FMCA 1978. The Appellant now appeals to this Court. 3 It is also relevant to note that the now Appellant had previously sought review by the Refugee Review Tribunal of a decision refusing to grant a protection visa. The application for a protection visa had been made in January 2006 and refused in April 2006. The Refugee Review Tribunal on 5 October 2006 dismissed the application for review upon the basis that it had no jurisdiction. The application had been lodged outside the prescribed time. On 24 October 2006 the now Appellant sought judicial review of that decision of the Tribunal. This appeal was dismissed by the Federal Magistrates Court on 15 December 2006: SZJOH v Minister for Immigration & Multicultural Affairs [2006] FMCA 1890. 4 It is considered that the appeal must be dismissed for the reasons previously given by both the Migration Review Tribunal and the Federal Magistrates Court. The Grounds of Appeal seek to characterise the errors as being errors of law, jurisdictional error and procedural fairness. There is also a ground which asserts that the Federal Magistrate did not apply Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The grounds are expressed in the most general terms but content may be given to them if reference is made to the reasons for decision of the Tribunal and the Federal Magistrate. 5 The Appellant's written submissions filed in this Court also make a submission as to a breach of s 359A of the Migration Act 1958 (Cth). 6 It is considered that each of the Grounds of Appeal should be dismissed as should the submission in respect to s 359A. 7 There has been no jurisdictional error and no error of law, either on the part of the Tribunal or the Federal Magistrate. Section 73 provides for the grant of a " bridging visa ", provided an applicant satisfies criteria which may be prescribed by regulation: s 31(3). Failure to satisfy those criteria requires a refusal of the application: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ. 9 For present purposes, the regulations of relevance may be found in Schedule 2 to the Migration Regulations 1994 (Cth), being regulations 010.211 and 010.221. 010.211 (1) The applicant meets the requirements of subclause (2), (3), (4), (5) or (6). 010.221 The applicant continues to satisfy the criterion set out in clause 010.211. The now Appellant did not satisfy Clause 010.211(2)(b) as his application for a protection visa had been " finally determined " at the time of his application in November 2006. That phrase is further defined by s 5(9) of the Migration Act 1958 (Cth). In the circumstances of the present case, the application for the protection visa had been " finally determined " as the delegate had refused the application and there had been no review " instituted as prescribed " within the meaning of s 5(9)(b). The Appellant did not satisfy cl 010.211(3)(c) as he was not the holder of a bridging visa A or B; he did not satisfy cl 010.211(4)(b) as he had applied for a protection visa; and there was no evidence that he had applied for a class of visa prescribed by cl 010.211(5)(a) or (6)(a). RANDHAWA ? Its relevance to the present proceedings, other than an impermissible attempt to now recanvass the earlier unsuccessful claims for a protection visa, is not apparent. If the submission is to be construed as an application for leave to amend the Notice of Appeal to raise an additional ground of appeal, the application for leave is refused. It was not an argument raised before the Federal Magistrate and no explanation has been advanced as to why the argument should now be entertained: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1. 13 A letter was in fact forwarded to the Appellant pursuant to s 359A inviting him to comment on the matters therein set forth. This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(2)(b). • When you applied for judicial review of the decision in relation to your protection visas on 24 October 2006, you did not hold Bridging A visa or a Bridging B visa. This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(3)(c). • You applied for Protection visas in Class XA on 18 January 2006. This information is relevant because it may indicate that you do not meet the requirements of cl 010.211(4)(b). • You had not made valid applications for a subclass of a visa prescribed by cl 010.211(5)(a). This information is relevant because it may indicate that you are unable to meet the requirements of cl. 010.211(5)(a). • You had not made valid applications for a subclass of a visa prescribed by cl 010.211(6)(a). This information is relevant because it may indicate that you are unable to meet the requirements of cl. 010.211(6)(a). • At the time of the Tribunal's decision, the judicial review of a decision in relation to your application for Protection visas has been completed and there is no evidence that the decision has been appealed. This information is relevant because it may indicate that you do not meet the requirements of cl. 010.211(3)(d) and therefore cl. 010.221. The letter, not surprisingly, has all the hallmarks of being written by a person with experience and detailed and extensive knowledge of the Migration Act and Migration Regulations . But it is a letter written to a non-lawyer and a person (at the very least) not fluent or conversant with the English language. Nowhere in the letter is there a reference to the clauses referred to being provisions to be found in the Migration Regulations . The origin or source of the clauses referred to would remain a mystery to the reader. Nowhere in the letter are the provisions of those clauses of the Regulations set forth, and a copy of the Regulations or an extract is not annexed. Those with access to the three volumes of the current Migration Regulations may also experience difficulty in finding the clauses of present relevance. Even an educated person may well have difficulty in making any meaningful comment in such circumstances. A letter inviting a person to comment upon undisclosed provisions is, it is considered, not much of an " invitation to comment". That submission may well be correct. It may well be that the matters set forth are more in the nature of the thought processes or reasoning of the Tribunal: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18] , [2007] FCA 26 ; 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. But, insofar as the Appellant is concerned, such subtleties do not deny the fact that he would have received the letter and read that it was forwarded to him in an attempt to " ensure both a fair and speedy review process . These include opportunities for review applicants to respond to material before the Tribunal, as well as limits on further opportunities if there is a failure to provide comments within a specified period. Section 359A of the Act states that the Tribunal must explain, and invite comments on, 'particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The bona fides of the author of the letter are not in question. What is in question is whether such matters as were disclosed in the letter put the recipient in a position where he could meaningfully contribute to what was held out as a " fair and speedy review process ". 15 Such deficiencies in the letter, however, do not advantage the Appellant, even if a breach of s 359A is made out and even if leave to raise the matter had been permitted. The simple fact is that he cannot bring himself within regulation 010.211 of Schedule 2 to the Migration Regulations and leave to amend should thus be refused. Any relief would have been refused as a matter of discretion: cf SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [27] ---[29], [2007] FCA 26 ; 235 ALR 609 at 618---19 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. In the present case, the refusal of leave to amend and the refusal of relief, even if a breach be established, is an exercise of discretion that " is proper, prudent, economical and just ": [2007] HCA 26 at [87] per Kirby J. 16 None of the Grounds of Appeal is made out. 17 Accordingly, the appeal must be dismissed. An award of costs is always discretionary but there is no reason why the usual approach to the award of costs should not apply. Appeal dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

migration act 1958 (cth) review of decision of migration review tribunal bridging visa failure to satisfy requirements provision of information by tribunal the need for a meaningful opportunity migration

This is a non-claimant application, commenced on 31 December 2004, for an approved determination of native title pursuant to s 13 of the Native Title Act 1993 (Cth) ('the Act'). An application may be made to the Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Act). A determination made on such an application will constitute an ' approved determination of native title ' (s 13(3)(a)) unless varied or revoked (s 13(4)). 2 The Land Council is a body corporate established under s 50 of the Aboriginal Land Rights Act 1983 (NSW) ('the NSW Act') for an area delineated under s 49 of the NSW Act and known as the Worimi Local Aboriginal Land Council Area, which includes the Land. Membership of the Land Council is not confined by statute to persons with a traditional association with the area but, by s 54(2A) of the NSW Act, is open to adult Aboriginal persons who either reside within the Land Council's area or have a sufficient association with that area. Membership is also open to Aboriginal owners in relation to land in that area. Following the transfer of the area that includes Lot 576, the Land Council holds a non-native title interest ' in relation to the whole of the area in relation to which the determination is sought '. It is the holder of an ' an estate in fee simple ... subject to any native title rights and interests existing in relation to the land immediately before the transfer ' (s 36(9) of the NSW Act). As the holder of such an interest, the Land Council is entitled under s 61(1) (Table, clause 2) of the Act to make the present application. Section 40AA of the NSW Act prevents the Land Council from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the Land unless the Land is the subject of an approved determination of native title within the meaning of the Act. 4 On 11 October 2004, the Land Council resolved, pursuant to s 40D of the NSW Act, that Lot 576 was not of cultural significance to Aborigines of the area and to dispose of Lot 576. The non-claimant application was lodged on 31 December 2004. 5 The proceedings were commenced by Peter Hillig in his capacity as administrator of the Land Council. Following the cessation of his appointment, an order was made on 29 June 2007 substituting the Land Council as the applicant in these proceedings pursuant to O 6 r 11 of the Federal Court Rules . The Minister was automatically joined pursuant to s 84(4) of the Act. 7 The notification period for the application (s 66 of the Act) was from 9 March to 8 June 2005. There is no dispute that the application was appropriately published and notified and that the requirements of s 66 of the Act have been complied with. 8 A notice of intention to become a party to these proceedings was filed within the three month time period provided for in the s 66 notice by New South Wales Native Title Services Limited ('Native Title Services') and by Mr and Mrs Parkinson. The application by Mr and Mrs Parkinson to be joined to the proceedings was dismissed ( Peter Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales, State Minister under the Native Title Act 1993 (Cth) [2006] FCA 61). Native Title Services was joined as a party on 5 July 2005. On 11 March 2008, an order was made granting leave to that party (whose name had been amended to NTS Corp Limited) to withdraw as a party to the proceedings. 9 I have recorded the history of this matter in Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 (' Worimi 2007 '). That history includes the striking out of two claimant applications filed by the third respondent, Mr Gary Dates, who prefers to be called Worimi. I will refer to him as Worimi. Each application was struck out pursuant to s 84C of the Act for failure to comply with s 61 ( Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 ; Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 (' Worimi 2006 ')). Worimi did not give notice within the notification period that he wanted to be a party to the non-claimant application. On 30 March 2007, Worimi filed an amended notice of motion to be joined as a party to the non-claimant application pursuant to s 84(5) of the Act. For the reasons set out in Worimi 2007 , I made an order that he be joined as a respondent to these proceedings. 10 No other person asserting the existence of native title in Lot 576 gave notice under s 84(3) of the Act within the notification period of a desire to be a party to the non-claimant application. 11 The hearing commenced over three years after lodgement of the non-claimant application. The delay resulted from the numerous applications in this matter, from the application for joinder by Mr and Mrs Parkinson to repeated applications for adjournment by Worimi to enable him to prepare claimant applications, seek legal advice and file evidence. In the time between the filing of the application and the hearing, no Aboriginal person other than Worimi has come forward seeking to become a party to the non-claimant application pursuant to s 84(5) of the Act. No Aboriginal person other than Worimi has come forward to resist the declaration sought by the Land Council on the basis of a positive assertion of the existence of native title in relation to the Land. The only Aboriginal people other than Worimi to come forward and to give evidence in these proceedings have done so as witnesses for the Land Council. No claimant applications other than those filed by Worimi have been made asserting the existence of native title in the Land. 12 The Land has been described as "Worimi country" by Worimi and by other Worimi witnesses called by the Land Council. Worimi places reliance on the evidence of these witnesses, Worimi people who were born and raised in the Port Stephens area and who have been claimants in previous native title applications over areas held by the Land Council close to Lot 576, and on their evidence that Lot 576 was part of "our traditional land" and that it falls within the boundaries of the Worimi nation. 13 During the course of the proceedings, there was a view of the Land and the place adjacent to the Land, described by Worimi as "the baptism place" on Kingsley Beach. Only women inspected the beach site. 14 Section 61 of the Act identifies applications that may be made under Division 1 of Part 3 of the Act and identifies the persons who have standing to invoke the Court's jurisdiction by making such an application. It is not in issue that the non-claimant application properly invokes the Court's jurisdiction. • What is the burden of proof on the Land Council and on Worimi? • Is there a presumption that native title exists over the Land? • Does the description of the Land as part of "traditional Worimi country" establish a presumption of native title? • Must the Land Council provide evidence to negative the existence of native title over Lot 576 to the extent of negativing each of the elements of native title under the Act? • In order to defeat a prima facie case of no native title, must Worimi adduce evidence of each of the elements of native title under the Act? • What is the relevance of the fact that some of the witnesses called by the Land Council have made claimant applications seeking determinations of native title over land within Worimi traditional land in the Port Stephens area? • What is the Land Council evidence? • What is Worimi's evidence? • What does the evidence as a whole establish? Section 84(4) provides that the relevant State Minister is a party to proceedings, without any expressed limitation, where the area covered by the application is within the jurisdictional limits of the State. The Minister did not exercise his entitlement under s 84(4) to give notice to the Court that he does not want to be a party to the proceedings. Worimi did not apply to have him removed. He remains a party. 17 Worimi says that, because the Land was transferred to the Land Council in fee simple, the Minister has no interest in the Land. He submits that, as there can be no positive determination of native title in these proceedings, no compensation obligation can accrue to the Minister as a result of these proceedings. He submits that the Minister has no interest that could be affected by these proceedings: no interest to protect, no interest which may be affected by a determination that native title does not exist in the Land and no obligation of fairness to be accorded by permitting cross-examination. 18 Worimi submits that the Minister has no right to cross-examine witnesses. He also appears to submit that the Minister has no right to make submissions. He relies in part on the fact that, although the Minister had been represented at all directions hearings, the Minister had not actively participated in the proceedings until the business day before the trial and had not filed evidence. 19 Worimi submits that no party has an automatic right to cross-examine. However, as the Minister points out, s 27 of the Evidence Act 1995 (Cth) ('the Evidence Act ') provides that a party may question any witness, except as provided by that Act. Section 28 provides for cross-examination by more than one party, subject to an order of the Court directing otherwise. The Court may restrict cross-examination, but that has not occurred in this case. No such order was sought. Worimi raised the role of the Minister at a late stage of the proceedings. The Minister was not on notice that Worimi sought to limit his participation until the proceedings were well advanced. No good reason was given for such a course. 20 The Minister did not file evidence. His participation was in the form of limited cross-examination and making submissions. I do not see how his participation inappropriately prejudiced Worimi. The case advanced by the Minister did not raise matters that were new in the proceedings and were, other than as to his participation, the subject of submissions from the Land Council. 21 The Minister's stated concern is to ensure that, if the Court is not satisfied that there are no native title rights and interests in the Land, the Court does not make findings in relation to matters which, by operation of s 225 of the Act, would need to be addressed if the Court were to make a positive determination of native title. The Minister submits that, if the Land Council fails to discharge the burden of proof, the application should simply be dismissed without making any findings resulting from Worimi's assertions as to the existence of native title. In other words, acceptance of Worimi's assertions might throw sufficient doubt upon the absence of native title without the necessary result being that native title, under the Act, exists. 22 There is no basis for Worimi's suggestion that the Minister has abandoned the right to participate in the proceedings or that he is bound to take a submitting role. I see no basis for Worimi's submission that the Minister's role is somehow constrained and that his counsel has no right to cross-examine witnesses in the proceedings. I do not accept that the Minister's interests are not affected by a determination in the proceedings simply because the Land is owned by the Land Council and not by the Crown. I accept the Minister's submission that, as the Crown in right of the State holds the radical title to the Land, it has an interest in knowing whether or not, and in what way, its radical title is burdened by native title rights and interests. He also has an interest in the operation of the NSW Act, including the operation of s 36(9) and s 40AA. 23 In any event, the Act does not require the Minister to establish an interest in order to be a party to the proceedings. I will not disregard the cross-examination by counsel for the Minister or the submissions made on his behalf. Where there is no approved determination of native title, an application may be made to the Court under the Act for a determination of native title in relation to the Land (s 13(1) of the Act). The Land Council, as a party holding a non-native title interest in relation to the Land, may make an application for a native title determination as mentioned in s 13(1) (s 61(1) of the Act). 25 All parties accept that the Land Council bears the burden of proof to satisfy the Court that no native title exists in the Land. All parties agree that the onus is on the Land Council to establish that there is no native title over Lot 576. 26 The Land Council and the Minister accept that the applicable standard of proof is the balance of probabilities. While there was some suggestion from Worimi that the standard of proof may be higher in the present case, he ultimately accepted that the Land Council must prove its case on the balance of probabilities. Worimi's written submissions state that it ' is common ground that the standard of proof is the balance of probabilities '. 27 There can be no doubt that the Land Council's case was and is clear: it seeks a determination that there is no native title in relation to Lot 576. The onus of establishing that fact is an onus borne by the Land Council on the civil standard, the balance of probabilities, taking account of the whole of the evidence. 28 All parties accept that, in a non-claimant application for a determination that native title does not exist, the Court is not required to and cannot make a determination that native title does exist under the Act. 29 There is no dispute that the Court may only grant the declaratory relief sought by the Land Council if satisfied that the Land is not subject to native title rights and interests existing in relation to it. 30 Worimi's submissions regarding the matters that he says the Land Council must prove in order to discharge its legal burden of proof are put in various ways which are not of identical effect. He says that the Land Council must establish that native title existed at sovereignty, importing a requirement to establish the laws and customs observed in respect of the Land and then show that the observation of those laws and customs has ceased and that any connection which Aboriginal people may have had with the Land under traditional law and custom has not been maintained. He also asserts that there is a presumption that native title exists over the Land which must be disproved by the Land Council. 31 I will address the issue of the evidentiary burden on the parties separately from the issue of whether or not there is a presumption of native title over the Land. However, because of the link between these issues, this approach necessarily involves some repetition. On 19 December 2007, after Worimi had been joined and a hearing date allocated, I directed the filing of Statements of Contentions by the Land Council and by Worimi, better to understand the case being made by each of these parties. While the document that the parties were directed to file was called a Statement of Contentions, it was clearly not a pleading in the sense used in Jango v Northern Territory [2006] FCA 318 ; (2006) 152 FCR 150. In that case, the "Points of Claim" filed by the applicant was considered to define the nature of the applicant's claim. 33 Worimi says that the material facts in respect of each of the facts and contentions and in respect of each of the elements necessary to establish native title have not been articulated in the Land Council's Statement of Facts and Contentions. He treats them as equivalent to pleadings. They are not and were not intended by me to be so, nor were they understood by the Land Council as such. The Land Council contends that, on establishing the matters necessary to demonstrate that the appropriate notification procedures have occurred and in the absence of a claimant application, the Court should infer that no native title exists over the Land and ' the evidential onus ' shifts to Worimi. The Land Council and the Minister both say that Worimi has ' an onus ' regarding his assertion that native title exists over the Land. 35 Worimi submits that the applicant in a non-claimant application under s 61(1) of the Act for a determination of the absence of native title has the same onus of proof as an applicant in a claimant application under s 61(1) for a determination of the existence of native title. That is, Worimi submits that the proof of no native title equates to the proof required for a determination of the existence of native title. By that, he says, all of the matters that would need to be proved to establish native title must be proved in the negative for a declaration of no native title. It follows, he says, that the applicant for a determination of the absence of native title would need to adduce evidence as to the historical, archaeological, linguistic and anthropological matters in the light of direct testimony of Aboriginal witnesses to establish the status of traditional laws and customs pre-sovereignty and since 1788. 36 Worimi's basic contention is that all questions of proof, both "legal" and "evidential", are borne by the Land Council. Worimi contends that the Land Council must clearly and unequivocally prove an absence of native title, adducing evidence including expert evidence covering the time from pre-sovereignty through to the present day. Worimi relies on the beneficial nature of the Act and the objects of the Act to provide for the recognition and protection of native title, to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings (ss 3(a) and 3(b) of the Act respectively). 37 While he denies that native title does not exist over the Land, Worimi has previously asserted that there is no burden upon him either to disprove the Land Council's case or to prove that native title exists. However, in written submissions, Worimi accepted that if the Land Council establishes a prima facie case that native title does not exist over the Land, that is, if there is sufficient evidence from which the negative proposition may be inferred, the evidential burden shifts to Worimi to adduce evidence to raise a doubt as to the existence of a fact in issue, being the existence of native title. He is then obliged to advance evidence which, he says, the Land Council would have to rebut in the discharge of its legal burden of proof. • No change was effected by the 1998 amendments. Specifically, there is no suggestion of an intention to reverse the onus of proof on non-claimant applicants. • It is the Land Council that is seeking a determination by virtue of s 61(1) (clause (2)) of the Act and, accordingly, the Land Council bears the onus of proof. • The legal burden of proving the necessary elements entitling the Land Council to a declaration is on the Land Council. • The evidence required to satisfy the onus of proof to obtain a declaration of no native title is not to be satisfied without strict proof of historical and anthropological facts through the use of widely accepted authoritative writings and expert evidence. • This expert evidence is necessary before a prima facie case is established and before there is any consideration of the evidence adduced by Worimi. • In weighing the evidence, it is necessary to take account of the ability of the party bearing the onus of proof to adduce evidence on a particular fact in issue and the extent to which it has done so or could do so. • The evidential burden does not shift to Worimi until the Land Council has proven a prima facie case which would negative the proposition that the Land is subject to native title rights and interests. 39 Worimi equates the legal burden of proving the absence of native title with an obligation to prove that each of the necessary elements to establish the existence of native title does not exist. That in 1788 there was a society of Aboriginal people who were unified by a normative system or 'body of norms' of traditional laws acknowledged, and customs observed, in an Area being claimed; B. The nature of the traditional laws and customs of the society in 1788; C. That the traditional laws and customs that form the normative system of the society give rise to native title rights and interests in land and water in an Area being claimed; D. The rights and interests that are possessed under the traditional laws and customs of the society; E. The traditional laws and customs of the society have been passed from generation to generation and had a continuous existence and vitality without substantial interruption since 1788 to the present time; F. The traditional laws and customs provide a "connection" between the Aboriginal people and the Area being claimed that has been maintained by the continued acknowledgement of traditional laws, and observance of traditional customs to the present day; G. Whether the current laws and customs have changed and adapted so not to sustain the same rights and interests that existed at sovereignty and, as such, have not remained traditional or have been lost or abandoned. 40 Worimi accepts that Aboriginal evidence provides the foundation for evidence of the existence of native title. The Land Council has called Worimi people to give evidence of laws and customs and of the connection with land in the area of Port Stephens. Worimi says that the Land Council cannot start to prove that the Land is not subject to native title rights and interests in relation to it until it has first proven what the nature and content of those native title rights and interests were at, or around, the time of sovereignty. He says that, once this is done, the Land Council can ' start to deconstruct this conclusion ' to prove that any connection has not been maintained. He contends that the calling of seven Aboriginal persons to say that they have no specific knowledge about the Land falls short of the proof required to demonstrate that the Land is not subject to native title rights and interests in relation to it. Worimi seems to base his submissions on an inference arising from the pre-sovereignty presence of Aboriginal people on and around the Port Stephens area. He says that it is necessary to show, as a minimum, that the Worimi people as a whole ' no longer observe and acknowledge traditional laws and customs in relation to the Port Stephens area where the Land is located '. Worimi says that the Land Council must prove that the existence and observance of those laws and customs has been substantially interrupted from sovereignty or that they no longer exist. 41 The Land Council says that the standard of proof does not change or become more onerous than the civil standard because these proceedings concern native title. It acknowledges that, in considering whether that standard has been satisfied, the Court will have regard to the objects and purposes of the Act ( Munn for and on behalf of the Gunggari People v State of Queensland [2001] FCA 1229 ; (2001) 115 FCR 109 at [28] ) and acknowledges that it is required to prove the negative proposition: that there is no native title over Lot 576. The Land Council does contend, however, that once it adduces evidence which, if accepted, establishes the negative proposition, the evidential onus to adduce evidence to show that the negative proposition is incorrect shifts to Worimi. The Land Council does not accept that it is required to establish the negative proposition by establishing the absence of each of the elements necessary to prove the existence of native title. 42 The Land Council and Worimi appear to agree that the evidential burden shifts to Worimi if the Land Council establishes sufficient evidence from which the negative proposition of no native title may be inferred. The real difference between the parties relates to their submissions regarding what evidence is sufficient to establish the negative proposition. As the Full Court noted in Clifton , stringent requirements are placed upon an applicant seeking a determination of native title. If I am not satisfied that native title does not exist, the application should be dismissed. 44 The Act does not provide for a procedure that enables a respondent to obtain a determination of native title which that party could not obtain as an applicant. The Act requires a native title claimant application to be authorised by the relevant native title claim group ( Clifton at [48]). Worimi has failed to maintain his filed claimant applications as they were not authorised by his asserted claim group, as described in each claimant application. 45 The beneficial nature of the Act does not mean that a different standard applies to the evidentiary burden and the onus of proof. Worimi has not advanced sufficient reason why the Land Council's application should not be determined on the civil standard of the balance of probabilities. In any event, Worimi appears to have accepted that the applicable standard of proof is the balance of probabilities. 46 In the absence of a claimant application following the giving of notice of the making of the non-claimant application in respect of the Land, the Court is entitled to be satisfied that no other claim group or groups assert a claim to hold native title to the Land ( Clifton at [59]). At the very least, this supports an inference of an absence of native title over the Land, subject to the matters to be raised by Worimi. 47 It does not follow that the absence of a native title claim means that, without more, there is a declaration of no native title. As was recognised in the joinder of Worimi to these proceedings, Worimi's assertion of native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). Worimi may not be able to establish that native title does exist but his evidence, if accepted, may cast doubt on the Land Council's case ( Worimi 2007 at [36]). 48 It does not follow, as Worimi has previously asserted, that his inability to secure a positive native title determination means that there is no evidentiary burden on him to support his contention that there is native title. As in other proceedings, in proceedings seeking a judgment in rem that no native title exists and in proceedings arising under beneficial legislation, the Court will assess the whole of the evidence. 49 The onus of proof is on the Land Council, which must satisfy the legal burden on the balance of probabilities, but there is no reason to conclude that if the Land Council establishes a prima facie case of no native title, there is no onus on Worimi to adduce any evidence in support of his assertion of native title. In dealing with the defensive use of native title in Kokatha People v State of South Australia [2007] FCA 1057 , Finn J observed at [52] that a non-applicant native title claimant who is unable to obtain authorisation to make a s 61 claim stands in no different position than any person who claims native title but is unable to institute proceedings to have that claim established. 50 The evidentiary burden on a party in Worimi's position in circumstances where the moving party must prove a negative proposition has been described in Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 (at 565) as similar to ' the evidential burden placed upon an accused in a criminal trial who seeks to raise the issue of self-defence which the Crown must disprove '. 51 Derschaw v Sutton (1996) 17 WAR 419 was a case of defensive native title to a criminal prosecution. That is, the defendants sought to establish the existence of native title as a defence. Justice Franklyn (with whom Murray J agreed) held at 431 that the defendants had to adduce or direct the Court's attention to evidence of each of the material matters necessary to establish the existence of native title. Despite Worimi's submission that the case has no precedent value, it should, as a decision of the Full Court of the Supreme Court of Western Australia, be followed unless it is plainly wrong ( Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]). Similar reasoning has been followed in other cases (see, for example, Mason v Tritton (1994) 34 NSWLR 572; Dillon v Davies (1998) 156 ALR 142 ; Lewis v Wanganeen [2005] SASC 36). Special leave to appeal Derschaw to the High Court was refused. In my respectful opinion, it is not plainly wrong. Justice Franklyn , drawing from Mabo v The State of Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 , pointed out that, in the absence of evidence going to each element of native title, there is insufficient foundation for the claim to have legal justification. I agree, with respect, with that analysis. To establish the existence of native title under the Act, the same elements of native title apply whether native title is asserted by an applicant or by a respondent. 52 If the elements of native title are established by a non-applicant claimant, it can prevent a determination that native title does not exist, although it cannot secure a positive determination of native title under s 225 of the Act ( Kokatha at [50] per Finn J). However, Worimi's evidence may be sufficient to raise a doubt as to the non-existence of native title without amounting to proof necessary for a claimant application or for a finding that native title exists. He says that a respondent seeking to avoid a finding of no native title must at least present evidence of some such rights and interests which disclose that there is a native title claim group. This may create a heavy burden for such a respondent but that is, he submits, inherent in the nature of the case to be made that native title exists. 55 Worimi does not need to establish that native title exists on the balance of probabilities. It is for the Court to assess the totality of the evidence to determine whether the Land Council has established, on the balance of probabilities, that native title does not exist. Worimi has identified a number of different groups, at various stages of these proceedings, that he says hold native title in the Land, including himself and his immediate family, and all Worimi people. He must also provide evidence that addresses, at the least, the Land Council's evidence that there is no native title within the principles set down in Yorta Yorta ; that there is no normative body of laws and customs in connection with the Land, the observance of which has been substantially maintained from the time of sovereignty to the present day. Worimi does not need to prove each element of native title. He is not obliged to establish native title as if it were a positive defence being asserted. He does, however, need to address native title under the Act by reference to those material matters. He must address the necessary elements sufficiently to cast doubt on the Land Council's assertion of no native title. He needs to show that there have existed traditional laws and customs in relation to the Land, the continued observance of those laws and customs and the maintenance of a connection with the Land. If he does not lead evidence as to each of those matters, elements of native title, he will need to adduce evidence, sufficient in scope and weight, as to one or more of those elements to cast doubt on the proposition that native title does not exist. 56 Worimi contends that the evidence required to discharge the Land Council's onus of proof ' may not be achieved without strict proof of historical and anthropological facts through use of widely accepted authoritative writings and expert evidence ' and ' involves consideration of the historical, archaeological, linguistic and anthropological evidence in the light of the direct testimony of Aboriginal witnesses '. Worimi says that, in determining the question of the existence or non-existence of native title on the balance of probabilities, regard should be had to the ability of the parties to adduce evidence. By this, he seems to be saying that the Court should give more weight to his evidence and discount the evidence of the Land Council. If he is, I do not accept it. 57 All of the evidence is to be weighed according to the proof which it was in the power of one side to produce and in the power of the other to have contradicted ( Apollo Shower Screens at 565). Once the Land Council has established sufficient evidence from which the negative proposition, an absence of native title, may be inferred, Worimi carries an evidential burden to advance evidence of any particular matters going to the existence of native title. It is then for the Land Council to deal with the evidence in the discharge of its overall burden of proof ( Apollo Shower Screens at 565). 58 Worimi submits that the Land Council is in a position to call all of the customary expert evidence and has not done so. The Land Council submits that Worimi is in the position to adduce evidence from other Worimi persons in support of his claim and has not done so. Each party asserts that he or it is under no obligation to provide further evidence. 59 Worimi asserts that he and his immediate family may be the only Worimi people who were given native title rights and interests in the Land and, he adds, in the area from Birubi Beach to Boat Harbour, under traditional laws and customs. It follows that Worimi has the means of bringing forward evidence to establish the existence of the native title rights and interests he asserts. It is not for the Court to conduct a roving enquiry as to whether anybody, and if so who, might hold native title over the Land ( Jango v Northern Territory (2007) 159 FCR 531 (' Jango ') at [84]). In considering the evidence adduced by Worimi, it is relevant that he is the person who is able to adduce evidence of the laws and customs that he asserts he and his family practise and observe. On the other hand, he has insufficient resources to present the expert historical and anthropological evidence to substantiate his claims. 60 The power of a party to adduce evidence may be relevant to the weight to be accorded to the evidence presented ( Apollo Shower Screens at 565; Blatch v Archer [1774] EngR 2 ; (1774) 1 Cowp 63 at 65; Ho v Powell (2001) 51 NSWLR 572 at [15]). It may also be relevant to the standard of proof. There is, however, a distinction between the probabilities on limited material available and whether limited material provides an appropriate basis on which to reach a reasonable decision ( Ho at [14]). 61 I accept that Worimi is not in a position to be able to adduce the historical and anthropological evidence to establish the existence of the Garuahgal clan of which he claims to be a member and the existence of traditional laws and customs over the Land. I do not, however, accept Worimi's submission that the Land Council is obliged to provide proof of historical and anthropological facts through the use of ' widely accepted authoritative writings and expert evidence ' in order to satisfy the burden of establishing the absence of native title on the balance of probabilities. The Land Council is not required first to establish each of the elements of native title and then to rebut them. The requirement to prove the negative does not equate to the requirement to prove the positive. 62 I am conscious of the absence of the kind of detailed expert evidence that is frequently adduced in determinations of native title. I am also conscious of the consequences of a determination of the absence of native title and the Land Council's stated wish to sell Lot 576. The Court must consider such evidence as has been adduced. The Land Council's evidence supports a case of no native title. Worimi has adduced evidence in support of his assertion of native title. The possibility of native title over the Land can only be assessed on the available evidence. I do not accept that the Land Council is obliged to prove that native title does not exist in the way advanced by Worimi, by establishing the nature and content of any native title rights and interests at the time of sovereignty and then "deconstructing" this through admissible evidence to show that any connection which Aboriginal people may have had with the Land no longer exists. The Land Council must establish, on the balance of probabilities, that native title under the Act does not exist over Lot 576. Is there a presumption that native title exists over the Land? Worimi says that there is a presumption, which the Land Council must negate, that there is native title over the Land. • The Land Council must prove that any connection which Aboriginal people may have had with the Land under traditional laws and customs has not been maintained. • In order to succeed, the Land Council must establish that traditional law and custom has ceased to be observed anywhere in "Worimi country". • It is incumbent upon the Land Council to adduce evidence from Worimi people positively to assert that no laws and customs have been passed down to them by their forebears and, additionally, there needs to be expert evidence that there were a set of normative rules traditionally adopted and followed and observed by the Worimi people. • Following Yorta Yorta , the Land Council must prove that pre-existing laws and customs have been substantially interrupted from what they were at sovereignty or no longer exist at all. • There must be evidence of the cessation of the acknowledgement of laws and observance of customs sufficient to show that those laws and customs have been abandoned by the whole of Worimi society. 65 Worimi submits that the evidence supports the inference that there was a group of Worimi people and a society of Aboriginal people who inhabited the area around Port Stephens at the time of sovereignty. For the purposes of this application, I accept that to be the case. 67 It then follows, in Worimi's submission, that the Land Council must lead extensive expert evidence of the Aboriginal laws and customs before the Court is able to assess the evidence of the Land Council's contemporary Aboriginal witnesses. 69 There is no presumption of the existence of native title under the Act, either for a claimant seeking a determination of the existence of native title or for a non-claimant seeking a determination of the absence of native title. 70 The Land Council acknowledges that it bears the legal onus of proof. However, it denies the existence of a presumption that native title exists either under the Act or at common law. It contends that the evidentiary starting point as to whether native title does or does not exist is neutral. 71 As the Minister points out, Worimi seems to suggest that it is incumbent on the Land Council to demonstrate that no possible combination of known or unknown past or present actions, beliefs or patterns of behaviour could amount to the acknowledgment of laws or observance of customs capable of sustaining any possible rights or interests in the Land. The burden of proving the absence of native title does not rise so high and is not envisaged by provision in the Act for a determination that no native title exists in respect of certain land. 72 In Mason v Tritton (1994) 34 NSWLR 572, Kirby P pointed to the difficulty for Aboriginal people to provide recorded details of, for example, genealogy. At 586---589, his Honour discussed the inferences that can be drawn to overcome the absence of evidence for the period from 1788 to a later time, in that case to the 1880s. Referring to the analysis in Wigmore on Evidence, vol 2, 3 rd edition at 437, his Honour said that it is not appropriate to apply a "presumption of continuance" but a process of inference. His Honour was prepared to draw an inference from proved use of land in the 1880s back to the time before 1788. As he noted, it is more easily drawn in more traditional Aboriginal communities. However, in Mason , there were other aspects of the claim to native title which were not proved. Further, it is hard to see from Yorta Yorta how a presumption of native title can be said to apply. 73 I do not accept Worimi's submissions. They assume that, in order to establish that there is no native title, the Land Council must first prove the nature of the pre-sovereign native title rights and interests which are presumed to exist, assume that the relevant laws and customs have continued to be observed since sovereignty and then disprove the present existence of native title by reference to each of the elements necessary to establish it. If it is necessary to prove each of a number of elements to establish native title and it can be shown that one of those elements is missing, that is sufficient to demonstrate that there is presently no native title over particular land. 74 Worimi points to Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 where it was accepted that at the time of sovereignty, the lands were inhabited by organised communities of Aboriginal people who had rights and interests in the subject lands, sourced in traditional laws and customs (at [34]). The parties accepted the ' tenacious persistence of native title ' and of traditional Aboriginal culture. Justice Madgwick took account of extensive expert reports of anthropologists and historians, as well as other evidence that had been filed, to conclude that there was no native title over the lands in question. That expert evidence was available in Gale . The fact that no such evidence is available in these proceedings does not prevent a decision being reached as to whether the Land Council has satisfied the burden of establishing the absence of native title, on the basis of the evidence adduced. 75 The Land Council is not required to overcome and negative a presumption that native title exists over Lot 576. The Minister accepts that ' it is common ground that the Land falls within traditional Worimi country '. However, the Minister does not agree that the use of such an expression or such informal identification of a region with a people, the Worimi nation, entails acceptance that there is and has at all times since 1788 been a native title holding group that is part of a society which has all the attributes that are necessary to sustain native title rights and interests in the Land under the Act. 77 Lot 576 is part of the land held by the Land Council in fee simple by reason of the transfer of the land under the NSW Act. It, together with the surrounding land, including Stockton Bight and Bagnalls Beach, have been described by the witnesses as "traditional Worimi country". 78 The use of the expression "traditional Worimi country" with respect to the Land does not create a presumption, without more, of the existence of native title for the purposes of the Act. Traditional land, or land that is regarded as traditional land and associated with a particular identified group, may or may not be subject to native title. There are requirements associated with the concept of native title under the Act that go beyond identification of land as "traditional land" or as land associated with the Worimi people. 79 The description of the Land as part of "traditional Worimi country" does not establish a presumption of native title over Lot 576. If that traditional connection has been maintained in a way which would sustain a claim for native title, then it is that claim which should have precedence '. 81 The transfer of land to the Land Council was not a recognition that there had been a traditional connection with that land sufficient to constitute native title. The relevant sections were introduced into the NSW Act to ensure that grants made under the NSW Act would not extinguish native title and would not be inconsistent either with the Racial Discrimination Act 1975 (Cth) or the Act. 82 Land may not be transferred by the Land Council until a determination is made as to the existence or absence of native title. If native title is shown to exist, the rights of traditional owners take precedence over the right of the Land Council to sell the land. 83 Worimi maintains that the inquiry for the purposes of these proceedings is not limited to the existence of native title over Lot 576. He contends that the inquiry extends to a determination of whether or not traditional laws and customs continue to be acknowledged and observed not only over Lot 576 but also over the surrounding country. • Native title rights and interests under the Act cannot be divorced from the territory claimed to constitute the traditional country. • As the Land falls within traditional Worimi country, the consideration of whether or not there is native title over Lot 576 requires a consideration of native title rights and interests over the whole of traditional Worimi country. 85 There is no dispute that the Act, having as one of the main objects to provide for the recognition and protection of native title, is remedial in nature and to be construed beneficially. 86 Section 36(9) equates the lands the subject of the transfer to the relevant Aboriginal Land Council with the lands the subject of native title rights and interests. The word "lands" has the same meaning in each use in subsection (9). The subsection recognises that native title rights and interests may not amount to a right or interest "in" the subject land. The acknowledgment or observation of a law or custom does not necessarily amount to a right or interest "in" the land itself but may give rise to a native title right or interest "in relation to" the land. This is recognised in, for example, ss 211(1) and (3) of the Act. 87 Section 36(9) of the NSW Act addresses native title rights and interests over land that has been transferred to an Aboriginal Land Council. In the present case, the Land Council only wants to sell a part of that land, namely, Lot 576. It wishes to establish that there are no native title rights and interests over the land it wishes to sell. The existence of native title over other land held by the Land Council may or may not be relevant but it is not determinative of native title over or in relation to Lot 576. There is no obligation arising from the wording of s 36(9) of the NSW Act to inquire into the existence of native title over all Worimi traditional land or over all of the land held by the Land Council for the purposes of these proceedings, which only concern Lot 576. • This allows people with interests in land to ascertain whether native title exists. The Act envisages that determinations of the absence of native title may be made and provides a statutory guarantee of validity to future acts (s 24FA). Section 61(1) provides for non-claimant applications for native title determinations. There is no indication in the Act that there is a presumption that native title exists that must be displaced by an applicant seeking a determination of the absence of native title. • The Minister has not abandoned his right to participate in these proceedings. The Minister has an interest in these proceedings, namely, to ensure that if the Court is not satisfied that there is no native title over the Land, that the Court does not make findings in relation to matters which would need to be addressed in making a positive determination of native title. The Minister also has an interest in knowing whether or not, and in what way, the Crown's radical title is burdened by native title rights and interests. In any event, the Act does not require the Minister to establish an interest in order to be party to these proceedings. • These proceedings do not enable Worimi to obtain a declaration that native title exists. In order to establish that native title exists, it is necessary to make an application under the Act and to comply with the Act and the requirements for the establishment of native title ( Kokatha ; Clifton ; Worimi 2007 ). • An applicant for a determination of the absence of native title has an onus to establish that there is no native title over the land. That onus applies to a civil standard. The applicant must demonstrate on the balance of probabilities that native title does not exist. • There is no indication in the NSW Act or the Act to indicate that the standard to be applied is other than the ordinary civil standard. • A respondent to the application may adduce evidence to cast doubt on the applicant's case. As I said in Worimi 2007 at [35], Worimi would need to advance a case that establishes that native title does exist or to cast doubt on the Land Council's evidence. Worimi's assertion of his native title rights and interests may lead to a more informed decision in the non-claimant application ( Worimi 2007 at [30]). • The decision is based upon the whole of the evidence before the Court including evidence adduced by Worimi. • The evidence adduced by Worimi should be assessed to determine whether it is sufficient to cast doubt on the Land Council's case such that the Land Council does not satisfy the Court that, on the balance of probabilities, no native title exists over the Land. • Accordingly, the onus is not on the Land Council to satisfy the Court as to the absence of each element required to prove the existence of native title. The Land Council is not required positively to establish the situation pre-sovereignty and from sovereignty to the present time with expert evidence of laws and customs. It is contrary to logic to say that a person who wishes to establish that there is no native title must first positively prove that there were laws and customs at any stage. • Worimi is the person who asserts the existence of native title. That necessarily means native title under the Act. The evidence must address the elements of such a claim, in particular the laws and customs and rights and interests from pre-sovereignty or the time of sovereignty to the present. It is not necessary to prove each element of native title but the evidence should be sufficiently cogent with respect to those elements it does address to cast doubt on the assertion that native title does not exist. If the evidence establishes the absence of a necessary element of native title, such as continuous connection with the Land, this would provide support for a determination of the absence of native title. • The Land Council may call evidence as to the existence or non-existence of laws and customs at each of those stages and as to the existence of a class or persons claiming the communal, group or individual rights. The Land Council may establish that only one necessary element is missing, such as continuous connection. That would be sufficient to establish an absence of native title. • The subject matter of this application is the land constituted by a single lot, Lot 576. Worimi contends that it is impossible to deal with Lot 576 without also considering the surrounding land. The Land Council has no obligation to demonstrate an absence of native title throughout the Port Stephens area. The evidence needs to concern the Land. However, evidence that relates to an area that goes beyond a recently subdivided lot is likely to be relevant. The question remains, however, whether there are native title rights and interests over Lot 576. • It is not in dispute that all formal requirements for a non-claimant application for a determination of the absence of native title have been met. In the absence of any evidence as to the existence of native title over the Land, the Land Council would be entitled to the determination it seeks. Both the Land Council and Worimi have adduced evidence addressing the existence of native title. It is necessary to consider the whole of that evidence to ascertain whether the Land Council has established, on the balance of probabilities, that there is no native title or whether sufficient doubt has been cast on the Land Council's case. This evidence addressed matters raised in Worimi's various affidavits filed in support of his native title claimant applications and in these proceedings. In order better to understand the Land Council's evidence, I will first consider Worimi's evidence as filed in his first affidavit for this hearing and as clarified in cross-examination. Many of those matters are in the form of assertion, including assertions as to matters not within Worimi's knowledge. Worimi's evidence is, by its nature, personal and historical and referable to his father and father's mother. I accept that those matters are stated as to his own belief of the facts. Worimi grew up in Raymond Terrace ' which is part of Worimi Country '. His father was Leonard Dates, son of Ellen Dates (nee Russell) and Freddie Dates. Ellen and Freddie Dates lived at Raymond Terrace. He says that Freddie Dates was the son of Mary Mahr and that Mary Mahr was born on the Burral River. • Worimi grew up in Raymond Terrace and attended school there until about the age of 13. He was raised by Ellen Dates in Raymond Terrance. When he was young his family and friends used to gather in a clearing behind the Raymond Terrace house which he says was ' our ceremonial ground ', where the family would eat oysters and pippis and the initiated elders would dance and sing and tell stories. The elders included Worimi's father, his father's brother, Arnold, and others from the Karuah Mission. • Worimi currently resides within the area that he describes as the Garuahgal area and has been there all of his life except for approximately three years when he was in Western Australia. • He has always considered the Garuahgal area to be his and his family's country and he has camped all over that country, including on the Land. • In about 1977 he and his family lived on the land between Stockton and Boat Harbour. They lived a traditional lifestyle in that they camped and obtained food in the ways he had been taught by his father, his father's brothers and Ellen Dates. After a conversation with police officers they stopped living there but continued to camp in the area whenever they could in the same manner. • Ellen Dates told him that the area between Birubi Beach and Boat Harbour was a special place for Garuahgal women, as the women used the strip of beach and the freshwater spring that runs along the Land to wash their babies. His father showed him the rocks that form the boundaries of the area that was special to women and told him to avoid the area and not to go beyond the rock boundaries. • Worimi accepts that as a Worimi man he is not allowed to know ' most of the Worimi law and custom regarding the womans' site '. He is entitled to know some things about the site, including its location, so he can ensure that it is protected. He was told of those matters by Ellen Dates and by his father. • Ellen Dates told him about the women's site when he was a young boy so that he knew it was an important place and a place that he should avoid because he is a man. • He explains what happened at that site but does not say from whom he obtained that information, nor how he knew of the detail. The Worimi word for the place where the sea meets the sand is ' Poona '. On this part of the Poona , the women bathe the babies in the sea water and give them their tribal totem. • The women's site at the Poona was not on the Land. That is, it was not on Lot 576. Worimi says that there was a billabong (also described by Worimi as a waterhole or freshwater stream) on or near Lot 576 and that there was no restriction on men going to the billabong. He also says that men were allowed to go and camp on the Land. He has visited and camped on Lot 576 many times since the age of 13 and continued to do so, that is, to camp on and visit the Land on a regular basis and to take his children to the Land, until about two years ago. They caught and ate fish and shellfish at the beach and from the rocks near the Land and Worimi says that he always believed that he had the right to do these things on the Land because it was part of ' my Guruahgal country '. • He has also taken wood and other natural materials from the Land for sculptures and other artworks. Worimi says that when his daughter, Beryl Dates, had a son in December 2006, his wife and daughter took the baby to the Poona and flushed the afterbirth in the sea and then wiped the afterbirth on the baby's head and gave him his tribal totem. The afterbirth was then wrapped in bark and the two women buried the afterbirth on the Land after Worimi's wife, Cynthia, placed sand in the hole it was buried in. Worimi says that his daughter is now the keeper of the site and he is not allowed to know where she buried the afterbirth. • Worimi says that he is the custodian of the Land which means that he is required to undertake cultural and heritage protection activities in relation to the Land and to care for and conserve the natural resources of the Land. He says that his knowledge of those laws and customs was taught to him by his father, Leonard, his father's mother, Ellen Dates, his father's brother, Arnold, and other elders on the Karuah Reserve including Big Bill Ridgeway who, he said, taught all the young kids at Karuah Reserve. Worimi says that his father had responsibility for protecting culturally significant places, including the Land, the coastal areas nearby and the women's sites. As the eldest male in his family, he was a custodian and a keeper of customary law for Worimi people. Worimi's father shared that responsibility with other Worimi men who were responsible for other families and other areas in Worimi country. He says that, in relation to the Land and the surrounding area, his father's mother, Ellen Dates, had an overlapping role as custodian/protector of the women's business at that place. Worimi says that on his father's death, as the eldest son, the position of custodian passed to him. 93 Worimi describes what he says are other significant sites in ' my country ' including mountains and the ' Guardian Tree ' on Bulahdelah Mountain. He describes the way in which the Guardian Tree is the guardian of all men and women in the Worimi area. 94 Worimi also describes the giving of totems. He says that Worimi tribal totems are animals with whom the child will grow to have a particular affinity. His tribal totem is the river goanna which was given to him as a boy. Worimi people are, he says, all spirits of their totem but take on human form. He learnt this from his father and his father's mother. 95 Worimi describes marriage law under Worimi law and says that when a woman marries into another tribe or clan she takes the law and custom of her husband's country and that marriage gives a connection to land under Worimi law. His present wife, Cynthia, was born in the Dunghutti area. 96 Worimi describes Worimi death and burial law, including the law that a Worimi person must try to come home to the territory of his or her particular clan to die and be buried and that burial should be near the mother. He also says that the dead were placed in the forks of trees and then wrapped in bark and placed in a hollow log. He says he has taught these laws to his children. 97 Worimi says that both his father and Uncle Arnold were initiated and that his father taught him words and sentences in the Worimi language. He says that he used to speak a lot of Worimi language with his father and his father's brothers. Worimi is trying to pass the language on to his children. Worimi also records being taught to burn patches of bush in the country and to hunt, gather and fish. He describes in some detail what he used to catch and eat. He says that he was taught these methods by his father and his father's brother. 98 Worimi says that his father and his father's brother taught him that the Hunter River was created by a rainbow serpent whose belly now forms Kooragang Island. 99 Worimi says that he took his children to the Land, including his daughter Priscilla Dates when she was small. He says that he took Priscilla to Boat Harbour and to Kingsley Beach, that he told his children the stories of the Dreamtime and the creation of the land and that Kingsley Beach was where baptisms took place. He says that he told them about the totems. 100 Worimi says that his grandmother told him that women would wash the afterbirth in the sea and give a sea totem to the baby. The afterbirth would be wrapped and the woman would pick out a place which would then become special to that woman. She also told him that the waterhole (the billabong on or near the Land) was important as a way to purify and wash the saltwater off the babies. He said he was told this by his father's mother when he was about 10 years old. 102 The Land Council relies on evidence from indigenous people to the effect that the Land is not considered to be subject to native title rights and interests. The Land Council witnesses gave evidence of the observation of traditional law and custom over Worimi land, the fact that many of the families had lived on Karuah Mission and that their way of living did not encompass traditional use of the Land. They cannot say that there is no native title over the Land. They can, however, speak of their own knowledge. Worimi submits that an inference should be drawn from the failure to call more of the 300 members of the Land Council ( Jones v Dunkel (1959) 101 CLR 298). This ignores the fact that the Land Council duly resolved to dispose of the Land in accordance with s 40D of the NSW Act. The Land Council has established that 83% of the voting members present at a properly constituted extraordinary meeting on 11 October 2004 voted in favour of selling Lot 576. 103 The Land Council's witnesses referred to Worimi as Gary and I shall do so in the summary of their evidence. Ms Merrick was born in Karuah at the Mission and has lived the whole of her life in the Port Stephens area. She has been involved in the Worimi community for her whole life and with the Land Council since it was established. Ms Merrick is related to Worimi in that his grandmother, Ellen Dates (nee Russell) was her great-aunt, being her grandfather's sister on her mother's side. 105 Ms Merrick is a traditional owner in the sense that she is referred to as one of the persons listed on the Register under the NSW Act. • Ellen Dates (Worimi's father's mother) and her husband were very religious Christian people. • Ms Merrick has never heard any stories to say that Ellen Dates was recognised as a traditional custodian or protector of Boat Harbour or of any other land in the Port Stephens area. • From stories that she was told, Ellen Dates dived for lobsters in the area near Shoal Bay. She heard no stories connecting Ellen Dates with Boat Harbour. • Ms Merrick has not had any stories passed down to her to say that land at Boat Harbour was a sacred women's place. She denies that it was a special, sacred place for women. • When she was young she would go to Boat Harbour with her mother and father. She was never told that there was a place either there or near there where men were not allowed to go. • Ms Merrick is aware of a sacred site for Worimi women in the Port Stephens area, around Salamander Bay, but says there is no place near Boat Harbour or between Birubi Beach and Boat Harbour that is sacred to women. If there were such a place, men and children would not be permitted to go there. • A person does not become a traditional elder because he is the eldest son. • It is contrary to law and custom, as Ms Merrick knows it, to enable Leonard Dates, Gary's father, to give him Boat Harbour. All of the people are traditional owners and it is not for one person to give away land. • Ms Merrick is not aware of members of the Worimi community using Boat Harbour for camping or any other traditional Aboriginal purposes other than fishing. She herself has not observed Worimi living in Boat Harbour or in the Port Stephens area in the traditional Aboriginal way. • Ms Merrick was a member of a claim group with respect to a claimant application over Bagnalls Beach filed in 1998. Ms Merrick said that she was authorised on behalf of the claim group in relation to their native title rights and interests as Worimi people. Forster is, she says, part of Worimi country down to Stockton and all the land was marked out by rivers and mountains and the coastline of the bays. • Ms Merrick believes that she and her family have native title rights and interests over Bagnalls Beach, which is about 3 to 4 kilometres from Nelson Bay. She says that they had a connection with most of the land around that area and that she is a custodian and a traditional owner. • Ms Merrick accepted that Lot 576 is ' within Worimi Country '. • Ms Merrick acknowledges that the Land Council wishes to sell the Land to pay its debts. She accepts that the Land should be sold in order for the Land Council to be able to provide housing. A knowledge holder or elder is a person who knows about the land, plants and animals, the ceremonies of their clan and where the women's sites and men's sites are. • Ms Brown was born near Port Stephens. • She is also a registered Aboriginal owner under the NSW Act and was a native title claimant for Stockton Bight. • Ms Brown was brought up as an Aboriginal and recognises the laws and the need to keep them. She says that Worimi people wandered all over the lands. She has written a book on Worimi laws and customs. She lives by the laws herself in the same way as her forebears lived. • Ms Brown has pursued an interest in the genealogy of the Worimi people and Aboriginal cultural mapping for approximately 20 years. She has been involved in projects to protect Worimi customs, flora and fauna and to raise awareness of the Worimi way of life in the community. • Ms Brown supports the Land Council's application for an order that there is no native title over the Land. • The Worimi tribe or nation is made up of a number of clans or "nguras", including the Maaiangal clan. The territory of the Maaiangal clan includes Lot 576 and there cannot be two clans in the one area of land. A clan is made up of generations of one family. • Ms Brown denies that the Land is Garuahgal land. • Ms Brown has always lived in the Port Stephens area except for about 12 years. Her family has always lived in the Port Stephens area, particular at Soldiers Point. • Ms Brown's father, George Ridgeway, was part of the Maaiangal clan and her mother was of the Yorta Yorta people. Ms Brown's father's father was James Ridgeway. • Ms Brown knew of Gary's father, Leonard Dates. She says that he was not recognised as an elder within the Worimi nation. He was not of the Maaiangal clan and, she says, neither is Gary. Ms Brown also knew of Gary's mother who was from the Yorta Yorta people and Gary's grandmother, Ellen Dates, who was her mother's father's sister. To her memory, Ellen Dates lived in Karuah, not at Boat Harbour. • She asserts that a lot of the information in Gary's application of 9 February 2006 and his affidavits of 20 January 2006 and 18 December 2007 is untrue. • As to Gary's claim that he is representing the Garuahgal clan of the Worimi nation, Ms Brown says that there is no Worimi clan called Garuahgal and she does not know where that information came from. The only clan that Ms Brown knows of by that name is near Glenbrook, which is not part of Worimi territory and it is spelt Garaugal. • Ms Brown says that the Worimi women's waterhole which was a birthing site was at Salamander Bay and not at Boat Harbour. She points out that a stream of water, as described as existing on Lot 576, would not be deep enough to immerse oneself in, which is what a woman did when she wanted a baby; she immersed herself in the waterhole. If possible, the woman would return to the same waterhole when she had her child, to clean the child in the waterhole. She also says that the area at Boat Harbour is not suitable for a birthing site because there is no protection. • Ms Brown repeated in cross-examination that, so far as she knew, there was no waterhole or women's site at Boat Harbour. She rejected the suggestion that, if a billabong had been present at Boat Harbour, it might have been a women's birthing site. She says that neither she nor anyone she has talked to had ever heard of it. She emphasised the need for there to be deep water for the birthing site, which would not exist where Gary's suggested billabong was. However, she did accept that Worimi people lived all over the Maaiangal land and that some may not have been able to get to Salamander Bay to give birth. • Ms Brown was told many things as she was growing up but she was never told of a women's site at Boat Harbour. She believes she would have been told about it had it existed. She says that, having gone near the Land, she did not get any sense of it being a sacred women's site. Further, if it was a women's site then Gary could not go onto the Land himself. In the past he would have been killed for going onto a sacred women's site, because men just did not go on to a women's site. • Ms Brown considers it unlikely that Gary would have had all the knowledge passed on to him by the time he was about 12 years old when his grandmother passed on. Usually knowledge is passed on gradually as one gets older and more respected. It is usually passed on after the person has been initiated, which occurs when a person reaches puberty. • Ms Brown says that land does not pass to a particular person as a custodian; it belongs to the community and therefore there are a number of custodians and knowledge holders of the land. • Ms Brown remembers going with her family, including men, to the area around the Land and Fisherman's Bay. • Ms Brown disputes a number of specific matters in Gary's affidavit including his reference to "billabong" which is not, she says, a term used by Worimi people. She also disputes his claim that a number of specific sites (not on the Land) are sacred. She rejects his claim that there were other specific sacred sites in the area. In particular, she says there was no special "Guardian Tree", nor a rock formation which is a goanna on top of a mountain. • She also disputes Gary's description of the position of a totem for Worimi people. She says that Worimi people are not spirits of their totem which have taken on a human form. She says that when you are born, you get a personal totem from something that is nearby at the time that you were born and also a tribal totem. The totem for Worimi is lightning. There is also a clan totem. The Maaiangal totem is the shark. There is also a women's totem, a white-throated tree creeper, and a men's totem, the little bat. • Ms Brown also says that it is not true that when a woman marries into another clan she takes the law and custom of her husband's clan. A woman keeps her own clan. Ms Brown also disputes a number of Gary's specific claims of customs including methods of hunting and fishing. She says that Gary's descriptions are simply not true. She also disputes some of the stories that Gary said applied as beliefs of the Worimi people. • Ms Brown went to the Land with other Worimi women after Gary said that his wife and daughter had buried the afterbirth of his daughter's child. They could find no indication that the afterbirth had been buried on the Land. • Ms Brown accepts that oystering was a traditional pursuit of Worimi people and had been pre-sovereignty. Her father, grandfather and great grandfather were all fisherman. They built boats from tea tree. She has passed information on bush foods to her children because it is part of Worimi culture. • Ms Brown had been part of a claim group over Stockton Bight. She still believes that native title exists in that area but says it was just on the Stockton Bight area and does not take in Boat Harbour. The claim over Stockton Bight did not extend to Boat Harbour. Stockton Bight is, she says, part of the land of the Maaiangal clan, who owned it before the white people came. It was important because burials and ceremonies were held there. • Ms Brown emphasises that Gary is not a Maaiangal person and that Boat Harbour is Maaiangal land. Loui Ridgeway would speak about different parts of the culture and what they used to do but never mentioned going to Boat Harbour or about it being a sacred place for women. Ms Russell also learnt about Worimi culture from her husband's mother and father. Her husband's father, Archie Russell, was a brother of Ellen Dates. • Ms Russell says that only women would talk about women's sites. Men would know where women's sites were but they wouldn't know what happened there. • Ms Russell used to go to Boat Harbour with her own family and other families. • Ms Russell, like the other witnesses from the Worimi people called by the Land Council, refers to Worimi as Gary. She says that he started calling himself Worimi but that others of the Worimi people do not call him Worimi, but Gary. • Ms Russell has never heard of Gary or anyone else living at Boat Harbour in a traditional Aboriginal way. To her knowledge, Gary's father, Leonard Dates, did not use the Land for camping and Gary's grandmother, Ellen Dates, did not swim off any rocks on the Land. Ms Russell is not aware of anyone using the Land for camping or any other traditional Aboriginal purposes. • She says that Gary made his native title applications without talking to her about it as a female elder of the Worimi tribe. He did not ask her whether she would support his native title application. • Ms Russell has no knowledge of the connection that Gary says that he and his family have with the Land. She says that she would have known about it if he and his family had been visiting the Land over the years, because of the connections with their two families. She has no such knowledge or recollection. • Ms Russell was one of the women who went to the Land after hearing that Gary had buried the afterbirth of his grandson on the Land. She could not see any sign of the ground being freshly dug up. • Ms Russell also disputes Gary's description of other nearby areas, such as Kooragang Island, being a sacred site. As far as she knows it was ' a bit of an island and then was built up from rubbish dumped from ships, years ago '. She also disputes Gary's description of the Hunter River being made by a rainbow serpent and his description of the methods of getting pippis. • Ms Russell disputes that it is Worimi law that you should be buried near your mother. She had never heard of the Guardian Tree or the rock formations described by Gary on Bulahdelah Mountain. • Ms Russell joined the claim over Stockton Bight. She believes that that land was not just Maaiangal land but was Worimi land. Her family is of the Maaiangal clan of the Worimi tribe or nation and she confirms that the Maaiangal land includes Boat Harbour. • She has lived in the Port Stephens and Newcastle area for her whole life and has been involved with Worimi Aboriginal community in a number of projects to protect customs, flora and fauna and to raise awareness of Worimi life. • Ms Ridgeway-Bissett was born at Soldiers Point and her family has always lived in the Port Stephens area. She says that the only Aboriginal families that lived on the Soldiers Point peninsula were related to her family. • Ms Ridgeway-Bissett was an Associate Lecturer in Aboriginal Studies at the University of Newcastle for a number of years and has been involved, as has her sister Ms Brown, in a number of consulting organisations. • Ms Ridgeway-Bissett did not vote for the sale of the Boat Harbour land because ' it is our traditional land '. She says that it is important to her family and it is important to the rest of the Aboriginal community ' in that it is Aboriginal owned land '. She does say, however, that Gary's native title application ' was nonsense and should not have been made '. • Ms Ridgeway-Bissett says that she conducts welcomes to country and has done so for some years. Such welcomes were commenced in the late 1990s. The only other ceremonies conducted on Worimi land by her family were initiations by her grandfather up to 1922. • Ms Ridgeway-Bissett says that there is no Worimi clan called Garuahgal and that the Land is not Garuahgal land. • Ms Ridgeway-Bissett disputes Gary's claim to be part of the Worimi tribe. She says that he claims to be a descendant of Mary Mahr. According to Gary, Mary Mahr was born at "Burral River". Ms Ridgeway-Bissett says that if this refers to Burrell Creek, that area is part of the Biripi nation's territory, so that Mary Mahr would have been part of the Biripi nation and not the Worimi nation. Worimi's mother is of the Yorta Yorta nation. • Some of the intricacies of identity are apparent from Ms Ridgeway-Bissett's evidence. She says that, in the Worimi nation, you are Worimi through the male line. On that basis, Ms Russell is not Worimi. • Ms Ridgeway-Bissett says there were no clans other than Maaiangal at Soldiers Point. The Ridgeways are Maaiangal clan and the Land is part of Maaiangal land. • Further, Ellen Dates, Gary's grandmother, is not, Ms Ridgeway-Bissett says, of the Maaiangal clan and could not have been made a custodian and protector of Boat Harbour, as the land around Boat Harbour is land of the Maaiangal clan. • Ms Ridgeway-Bissett says she was told many things about what happened in the area and believes that she would have been told if there was a women's site there. • Ms Ridgeway-Bissett says that Boat Harbour is not a sacred place for women or a waterhole for giving birth and the land between Biripi Beach and Boat Harbour is not a sacred women's place. She confirms that, under traditional law and custom, men are not allowed to know about women's sites and were not told any details about what women did on the sites. She says that Gary could not be a protector of a women's site. • The sacred site for Worimi women in the Port Stephen's area is at Salamander Bay. The site at Salamander Bay is sheltered, in contrast to the alleged women's site at Boat Harbour, which is rocky and exposed and not near any of the camping areas. • Having examined the area around the Land, Ms Ridgeway-Bissett could not find anything to show that it was a sacred women's site. Prior to that visit she had not specifically gone to the land at Boat Harbour although she used to visit there as a child, but to her it was just part of the bush. She says that, had it been a sacred site, she would have been told not to go there. She says that the land at Boat Harbour isn't sheltered enough for camping. It was a community area. • As to Gary's affidavit of 18 December 2007, Ms Ridgeway-Bissett says that "billabong" is a Northern Territory word. She denies that there is a billabong (the Worimi word is "namby") on or joining or next to the Land. She also says that babies were not bathed in sea water after they were born. • She disputes the "Guardian Tree" and says that there is no such thing. She supports Ms Brown's description of the link between an Aboriginal person and a totem and does not agree that it is Worimi law that you must come home to be buried in your clan territory or near your mother. She says that Worimi people did not adopt the burial practice of placing bodies in trees and says that it is not part of Worimi law to visit graves. • Ms Ridgeway-Bissett disputes that the Hunter River was made by a rainbow serpent. • Ms Ridgeway-Bissett says that there is an island called Ash Island upon which there are some middens but confirms that Kooragang Island is made up of a number of different islands and was built up from ballast, dredging and other waste to form one big island in the 1960s and 1970s. She also disputes Gary's description of traditional methods of hunting and fishing. • Ms Ridgeway-Bissett was part of the group that inspected the Land after they heard that Gary's grandson's afterbirth was buried there. She says that she could not find anything to suggest that afterbirth had been buried on the Land. • She confirms a native title claim over Stockton Bight land which was part of a land created at the time of the Dreaming and contains many sites used for camping and burying. Ms Ridgeway-Bissett believes that there is a duty to protect and preserve all the Maaiangal land for future generations including the Land. She believes that it should be held in trust for the Aboriginal peoples. • Ms Ridgeway-Bissett was also part of the claim group for Bagnalls Beach which, she says, was also a part of her family's traditional country and used for fishing and gathering plants for food and medicine. She believes that there are native title rights and interests over Stockton Bight. The claim of the area of Stockton Bight did not include the area around Boat Harbour. A claim has not been made over Boat Harbour and Ms Ridgeway-Bissett does not propose to make one. He grew up in the Karuah Mission and his father was Big Bill Ridgeway. • Mr Ridgeway says that Gary should not be called Worimi and no-one calls him that. He remembers Gary from the Karuah Reserve or Mission when he was young. He also remembers Gary's parents and Leonard Dates' parents. At the Karuah Mission everyone was a churchgoer and no-one learnt the Aboriginal language. English was spoken. • Mr Ridgeway says that he can remember Gary coming to visit the Karuah Mission when he was about 7 or 8 years old. He cannot recall going to visit the Dates family after they left the Mission. • Mr Ridgeway has been to the Land but does not remember going there as a child. He does not think that the Land has any particular significance. • Mr Ridgeway disputes Gary's assertion that Big Bill Ridgeway told Gary about Aboriginal ways. He says that his parents did talk about old times but did not talk about tribal ways ' because we more or less lived in a white society '. • Mr Ridgeway says that he wasn't taught about women's sites and men's sites in the early days. He only learnt about that after the Land Council was formed. • When asked whether the Land was inside Worimi country, Mr Ridgeway said that it was given to the Worimi people by the government and inside the boundary of the land so transferred. She says that she does not know why Gary says that he has a claim on the Land and that she does not believe that to be the case. • Ms Quinlan's memory is that her father Leonard Dates never spoke an Aboriginal language and did not do anything to show his Aboriginal culture. • Ms Quinlan lived with Ellen Dates for a number of years when she was young and Ellen Dates was in her 80s. She says that Ellen Dates did not speak an Aboriginal language. Ellen Dates died when Ms Quinlan was about 11 years old. She never saw Ellen Dates having ' any corroborees or anything like that ' and didn't see her carrying out any traditional Aboriginal activity. Ms Quinlan confirms that Ellen Dates was very religious and that she took Ms Quinlan to church. • Ms Quinlan has never been to the Land and says that her family did not go there when they were children. They did not have a car and Leonard Dates did not drive. She does not know what the Garuahgal clan is and only heard about it through Worimi's claim on the Land. • She never went camping with her father and had never known him to go camping although she could not say that he didn't do so, especially at the time when she was with her grandmother. • She says that Gary spent a lot of time away from home when he was young and that when he was about 16 years old he left home. She understands that he went to live in Western Australia. She is also a member of the Land Council. • Ms Dates lived with Worimi's mother and father, Beryl and Leonard Dates, the latter until he died, until she was 16 or 17 years of age and then lived with her mother. She is the daughter of Worimi and Alana. • Ms Dates has been through the area where the Land is situated but has never been on it. She says that she did not go there when she was young. She has no special feelings for the Land and does not know anything about it. Ms Dates was adamant that she did not, when she was growing up, learn about Aboriginal tribes or Aboriginal clans or Aboriginal culture and first heard her father speak of it in the last couple of years. She says that she never heard her father speaking an Aboriginal language. • Ms Dates says that Worimi told her a couple of years ago that women had their babies on the Land but that was the first time she had heard anything about it. She says that she did not learn anything about Aboriginal culture when she was growing up from Beryl Dates, Leonard Dates or Worimi. • Ms Dates accepted that she had affirmed two previous affidavits supporting Worimi's claims but says that she was drunk on both occasions and that she only signed them out of love for her father. She had given inconsistent evidence in previous affidavits in support of her father's claimant applications. She accepted that she had not been coerced into signing those previous affidavits but said that she had been drunk on both occasions. • While Ms Dates has given conflicting evidence, her recollection was not perfect and she readily agreed with many of the propositions put to her in cross-examination, she was adamant about a number of things: she was not approached to give evidence in support of the Land Council; she was not offered any compensation or inducement to do so; she is not scared of her father or of any family members; she has not been threatened with any violence in relation to her evidence; no pressure has been placed on her to give evidence --- she has done it of her own volition. Kelvin Dates was required for cross-examination but was unable to attend because of illness. Kelvin Dates' inability to attend was accepted by all parties. That inability and the absence of cross-examination does, however, affect the weight to be given to the matters to which he deposes which are in dispute. His father was a Worimi person and his mother a Yorta Yorta person. • Kelvin Dates has been recognised as a traditional owner among the Worimi Aboriginal community. He has been nominated as a traditional owner by his family and accepted by the community as a traditional owner. He says that he does not believe that Worimi has been recognised as a traditional owner among the Worimi Aboriginal community. • Beryl Dates was born in Victoria and, to Kelvin Dates' knowledge, has never been to Stockton Bight. Kelvin Dates is not aware of any cultural significance at Boat Harbour or that there has been any fishing at or storytelling about Boat Harbour. He himself had not been to Boat Harbour until early 2005. • He was not aware of his father passing Boat Harbour to Gary or telling any stories to him, or camping or fishing with him at Boat Harbour. • Kelvin Dates never heard his father speak of Aboriginal culture or about Aboriginal land. Kelvin Dates believes that Gary left the Port Stephens area in the late 1960s and returned around 1976. He confirmed that the family did not have a car when he was growing up. He said his father had a motorbike but he had never seen either of his parents drive a motor vehicle. • To his knowledge, his grandparents never lived at Boat Harbour and did not have any connection to Boat Harbour. His father and grandfather were born in Karuah and his grandmother in Forster. • He is not aware of Gary living a traditional lifestyle at Boat Harbour or anywhere else and is not aware of his brother having a connection to Boat Harbour prior to his native title application. • He says that his family did not have a special connection to the Land. He was not taught about fishing and hunting when he was growing up. He has never heard of the Guardian Tree or rock formations on Bulahdelah Mountain. He does not agree that it is Worimi law that you should be buried near your mother or that you should return to your territory when you die. He had not heard the story of the creation of the Hunter River as described by Gary. He reiterated that the Land was important to all Worimi people, in particular to women. He explained that he restricted his claim as being on behalf of the women in his immediate family because other Worimi women affirmed affidavits that they did not know about the women's site. He says that he understands that all Worimi people hold native title in the Land, not just himself or his immediate family. 110 Worimi answered specific assertions in the Land Council's evidence and said, for example, that Leonard Dates and his grandmother did speak 'Worimi Lingo' and that his father had shared his knowledge and culture with Ms Quinlan. Further, he said that his father had initiation scars on his chest. 111 Worimi reiterated his claims concerning the knowledge passed to him and explained why Ms Quinlan and Kelvin Dates may not have been aware of that knowledge or the fact that it was passed to him. He also reiterated how he was told by his father and his father's mother of the matters about which he had given evidence and which were disputed by the Land Council's witnesses. Further, he says that he was told that when babies are born of the Saltwater people (Maaiangal, Garuahgal, Tobwabba and Gamapingal clans), the baby's head is splashed with saltwater and they are given their totem. 112 Worimi says that he was told that Mary Mahr was born at Burral River, 60 kilometres from Karuah. Named applicants in those applications included Ms Brown, Ms Ridgeway-Bissett and Kelvin Dates. Those applications cover Stockton Bight and Bagnalls Beach but do not include Lot 576 or land within the immediate vicinity of Lot 576. 114 Worimi sought to tender material in respect of those applications made on behalf of the Worimi people. The claims over Bagnalls Beach and Stockton Bight were the subject of cross-examination. Both involved areas within what has been described as Worimi country and, Worimi says, in close proximity to the Land. In those applications, assertions were made as to membership of the Worimi people and membership of a native title claim group. Evidence in support of the applications was directed to the cultural heritage significance of the areas to the Worimi people. Affidavits contained material concerning customs of the area and of the Aboriginal people who lived there, including descriptions of fishing and the passing of knowledge. 115 There is a reference in some of those documents to Maaiangal people. One reference links the Maaiangal clan with Kelvin Dates. 116 Worimi contends that the documents evidencing previous native title applications in relation to land in the Port Stephens area by Worimi people are admissible and relevant to the issue of whether those witnesses believe that native title exists in the Port Stephens area and whether there are other Worimi persons who may hold native title. The claimants included witnesses in these proceedings, who were cross-examined on the fact that they had filed and supported native title applications in the Port Stephens area. The fact of those applications and the fact that assertions were made in those applications is relevant and admissible in these proceedings. However, I do not accept Worimi's submission that the fact of the earlier native title applications leads to the conclusion that the witnesses were untruthful in their evidence in these proceedings or that they tailored their evidence to suit the present wish to sell Lot 576. 117 The Land Council and the Minister objected to the tender of the material on the basis of relevance. The Land Council submitted that the cross-examination of the witnesses on this subject matter went to credit and that the documentary material was not admissible because of s 106 of the Evidence Act . The Minister and Worimi finally submitted that, if admitted into evidence, the evidence should be received as evidence of statements or assertions made by the author of the document, not evidence of the truth of those statements. 118 I do not consider that the applications and the fact that some of the witnesses were claimants for native title over Stockton Bight and Bagnalls Beach impeaches their credit in these proceedings even if the documents in the tender bundle were admissible for that purpose. The witnesses were cross-examined about those applications. Generally speaking, they do not want to see any of the land held by the Land Council sold but accept that it is necessary for the Land Council to sell Lot 576 to pay debts and provide housing. They do not object to that sale as Lot 576 does not have significance to them in terms of law or custom. 119 I accept the tender of those documents as going to the fact that the applications were made and the fact that the assertions therein were made by the witnesses concerned. Worimi also tendered, and I accepted, the tender of his grandparents' marriage certificate. 120 Part of the bundle contained the judgment and the reasons for a decision of a judge of the Court, that did not require tender. 121 Also included was a decision of the National Native Title Tribunal. It is admitted as a decision of the National Native Title Tribunal of 24 September 2001. 122 Also included was what seemed to be genealogical material. No evidence was adduced as to the basis of that material or as to its status, nor were the authors offered for cross-examination. To the extent that that material states conclusions, the basis for the conclusions is not sufficiently included. I reject the documents entitled "Colbran Genealogy" and an extract from Norman Tindale "Aboriginal Tribes of Australia" (not strictly included in the bundle). 123 It follows that Worimi's tender bundle shows that applications for native title determinations were made in 1998 and 2000 over land in the Port Stephens area in proximity to Lot 576, being Stockton Bight and Bagnalls Beach, but not including the Land the subject of this application. The applications were made and/or supported by certain witnesses in these proceedings, including Kevin Dates, Ms Ridgeway-Bissett, Ms Brown, Ms Merrick and Ms Russell, as well as by the Land Council. 124 Worimi contends that the assertions of native title over Stockton Bight and Bagnalls Beach are inconsistent with the denial of native title over the Land and the area adjacent to the Land at Kingsley Beach. The inconsistency that Worimi relies on relates to his assertion that the phrase "in relation to" in s 36(9) of the NSW Act necessitates a consideration of native title rights and interests over the whole of the land held by the Land Council pursuant to the transfer under the NSW Act and includes other land in the Port Stephens area. I have not accepted that such an inconsistency arises. Worimi says that it is highly relevant that there have been assertions of native title over land located on the coast in "close proximity" to Lot 576. I accept that the existence of native title over land in close proximity to Lot 576 may be relevant to the existence of native title over the Land to the extent that if casts light on one or more of the elements of the asserted native title. 125 Worimi accepts that the mere assertions in those claims do not prove that native title exists but submits that it is relevant that the witnesses assert that they are descendants of people from Port Stephens whom they considered were native title holders. 126 The issue is native title under the Act. The evidence must be looked at as a whole. An assertion of native title is not sufficient. It is necessary to provide some evidence of connection with the Land and the laws acknowledged and customs observed in connection with the Land. There is no inconsistency with the fact of the assertions of native title over Stockton Bight and Bagnalls Beach and the denial of the existence of native title over the Land. The fact that evidence could show a connection with Stockton Bight and Bagnalls Beach does not mean that it could also be shown for Lot 576 or Kingsley's Beach. The witnesses who were part of the claim group over Stockton Bight and Bagnalls Beach maintain the existence of laws and customs in connection with that land but positively assert that they have no knowledge of any continuing laws acknowledged or customs observed in connection with Lot 576. To the contrary, they deny the existence of such laws and customs. Worimi says that he was and is upset that the Land Council wishes to sell the Land to pay debts and buy housing, without considering the cultural significance of the Land. There appears to be no dispute that the Land Council wishes to sell the Land to pay off its debts. It is apparent that the witnesses called by the Land Council support the sale of the Land for that purpose and accept that that was the reason for the Land Council's application. Worimi says that, despite the fact that he knows of the need for housing, he does not wish to have sacred land sold. Worimi asserts that the provision of housing is the government's responsibility and not that of the Land Council. That was, he says, because the map provided with the resolution at the meeting on that occasion reminded him of the fact that it was a women's business place. • Worimi was not a member of the claim group over Stockton Bight. He says that it was part of Garuahgal land before it was Maaiangal land but he cannot remember if he complained of that fact. He did not seek to become part of that claim nor did he make a native title claim otherwise over Stockton Bight. He did not seek to participate as a claimant over Bagnalls Beach although Bagnalls Beach is, according to Worimi, part of Garuahgal land. Worimi has not made a native title claim over any land in what he says is Garuahgal country or any other part of Boat Harbour other than Lot 576. • Worimi says that the claim to native title over Lot 576 can only be made through him because of his knowledge. • Worimi says that Ellen Dates had great faith both in God and in her ancestors and that she was not strictly Christian. • He maintains that his grandmother told him about the baptism place, the Poona on the beach and the waterhole. She used her own word ' Poona '; she did not use the word "billabong" but freshwater spring. She described a stream running through Lot 576. • He says that his sisters, other than Ms Quinlan, did not know of the matters that he was told by his grandmother and that the other Worimi women have no knowledge of traditional law and custom. • Women came from other areas to the Poona; they were Garuahgal women. He does not know why they are not supporting his assertion of native title. • Worimi says that there were three phases of use of the Land and the nearby area of Kingsley Beach: a baptism where the ocean meets the beach (the Poona); there was then washing in the waterhole (located on or near the Land); and then the afterbirth was buried somewhere on Lot 576. • He also said that as a child his father taught him the Worimi language which he used to speak with his father and father's brothers and is trying to pass on to his children. • Worimi maintains that his father did follow Aboriginal law and custom and that he often went to Boat Harbour. His father told him that he was the custodian and protector of all of the Worimi land, not of all the Worimi women. • Worimi said that Big Bill Ridgeway did not teach the children about Aboriginal law and custom, just about throwing boomerangs. • Worimi does not recall saying that he was an elder of the Worimi people. He accepts that he cannot be so because he is not yet 60. He says he is a custodian but not an elder. He became a custodian at age 27. He says that the age of 51 has no significance at all. However, Worimi has previously stated that he became an elder at 51 years of age. • Worimi asserts that his daughter Priscilla Dates is lying. He says that the daughters who affirmed affidavits in support of his claimant applications did so because they knew he was telling the truth. • Importantly, Worimi says that to his knowledge, Ellen Dates did not pass on any information about the Boat Harbour land and the practices of the women's site to any of his sisters except Ms Quinlan. 129 Worimi described the actions of his daughter Beryl in performing a baptism ceremony for his grandson which involved baptising the child in saltwater at Kingsley Beach, the giving of his totem and then burying the afterbirth somewhere on Lot 576. Worimi said that this represented a culture, ' a tribal custom that has been taken away from my people and this may be the first [time] that it's happened [in] over the last probably 150 years '. He also accepted in cross-examination that the Worimi no longer carry out these practices but that the Dunghutti continue to do so. Worimi's wife, Cynthia, is Dunghutti and he said that the steps his daughter Beryl and his wife Cynthia took to baptise his grandson were not Worimi practices but Dunghutti practices. 130 When asked whether he asserts that he personally has native title over Lot 576, Worimi reiterated that he makes the assertion ' on behalf of all my people, of the 11 clans ... of the Worimi nation '. Insofar as his claim extends to being on behalf of his wife, daughters and mother, he says that it is only for permission to go onto the Land. He says that if the contrary was asserted in an affidavit or in a claimant application he did not understand it. 131 Worimi accepts that his mother does not have native title over the Land and that she lost her tribal right once his father died because she is Yorta Yorta. According to Worimi, she has had no rights to make a native title application over Lot 576 since 1981. I note that he did not rely on that fact when I found that his mother was, on his case, included in his asserted claim group but had not authorised his claimant application ( Worimi 2006 and Hillig (No 2) ). To the contrary, he obtained her authorisation subsequently. This is only necessary if, contrary to his evidence in cross-examination, she is part of the Worimi claim group. I will not summarise all of those affidavits. Some are evidence in these proceedings. Many of the matters contained in Worimi's previous affidavits were referred to in Worimi 2007 , Worimi 2006 and Hillig (No 2) . However, some matters, as found in those cases, bear repeating. They are either matters that Worimi says are part of his own knowledge or represent his understanding, based on stories told to him by his father and grandmother. He said that part of the Land was a sacred and secret place for women. Worimi said that he was authorised by the other claimants to that native title right, the authority having been given to him as custodian and protector of the Garuahgal women. • Worimi said that the Land and all the other land between Birubi Beach and Boat Harbour was given to him by his father, Leonard Dates, who received it from his father, Frederick Dates, a traditional elder of the Garuahgal clan. Worimi claimed to be a traditional elder of the Garuahgal clan as the eldest son of Leonard Dates and because he is over 51 years of age. • Worimi said that '[t] he land between Birubi Beach and Boat Harbour was a special sacred place for women. They came here to give birth and the babies were washed and baptised in the fresh water spring that runs along [the Land] . Men were not allowed to visit this place. My grandmother told me these stories '. Worimi claimed that his grandmother lived a great part of her life in Boat Harbour except when she was ' banished from the land and taken to a Reserve in Karuah '. Worimi claimed that his father told him stories about the Land and that he has carried on the association with the Land. • Worimi said that the Garuahgal women wish to reclaim their secret, sacred place. He stated that his grandmother told him stories of how the Boat Harbour land was a secret, sacred place for women and that the tribal women came to the Land to give birth. He stated that his grandmother told him how they washed the newborn babies in the freshwater stream that runs along the Land. • Worimi also said that his father told him stories of the secret women's place and pointed out the special rock which was the boundary where men could not pass. That rock was on the Land, adjoining the land at Boat Harbour. • Worimi also described his own association with the Land as a place where he lived, camped and fished. He described the Garuahgal area as being "a state" of Worimi country. • Worimi said that his father's mother taught him that there were sites sacred to Worimi women on and adjacent to the Land. • He said that as a Worimi man, he is not allowed to know most of the law and custom regarding those sites. • He did not limit the use of the Land to women of the Garuahgal clan. He said that Worimi women travelled to the Land and the area adjoining the Land to have their babies. He said that after having their babies, the women would take them to a place near the Land, on an area of Kingsley Beach known as "the Poona". There, the women bathed the babies in the sea water and gave them their tribal totem. The women would then take the babies to a billabong adjacent to the Land to wash the sea water off the babies and would bury the afterbirth on or near the Land. • Worimi said that men are not allowed to go to the women's site at the Poona but there is no restriction on men going to the billabong or the Land. • Worimi said that he is the custodian of the Land. His father had been the eldest initiated male in his family, which meant that he was responsible for making decisions about his country and his family and for protecting culturally significant places, including the Land. Worimi says that on his father's death, he became custodian. • Worimi stated that he now believes that he and his children may be the only persons who currently hold native title rights and interests in the Land. He said that he may be the only person who was given the native title rights and interests in the Land under traditional laws and customs. Those affidavits, many of which are in similar form, are from Worimi's daughters (Rachel Dates, Priscilla Dates, Pur-ri (Beryl) Dates and Sheena Dates), mother (Beryl Mildred Dates), wife (Cynthia Dates) and sister (Debbie Dates). The deponents stated a belief that they have native title rights and interests in the Land under traditional laws and customs, as taught by older family members. That means native title under the Act. In Yorta Yorta , the High Court emphasised that native title under the Act must be understood in accordance with the definition in s 223(1) of the Act. Their Honours reiterated what had been said in Fejo v Northern Territory [1998] HCA 58 ; (1998) 195 CLR 96. Native title, with its origin in the traditional laws acknowledged and the traditional customs observed by the indigenous people who possess the native title is recognised by the common law. Their Honours went on to state that: ' An application for determination of native title requires the location of that intersection [between native title and the common law] and it requires that it be located by reference to [the Act]. In particular it must be located by reference to the definition of native title in s 223(1) '. A determination of the existence of native title is a creature of the Act ( Yorta Yorta at [32]). So too is a determination of the absence of native title. • Observable patterns of behaviour may not amount to rights or interests in relation to land or waters under the Act (at [42]). • Upon the Crown acquiring sovereignty, the normative or law-making system which then existed could not thereafter validly create new rights, duties or interests. Rights or interests in land created after sovereignty and which owed their origin and continued existence only to a normative system other than that of the new sovereign power are not given effect (at [43] and [44]). • This does not prevent the transmission of rights and interests under traditional laws and traditional customs which existed at sovereignty. Nor does it prevent any alteration to, or development of, that traditional law and custom after sovereignty. Account may at least be taken of developments of a kind contemplated by that traditional law and custom (at [44]). • "Traditional" law or custom is apt to refer to a means of transmission of law or custom. In the context of the Act, the term "traditional" conveys an understanding of the age of the traditions. However, in the context of the Act, "traditional" laws and customs equate to the normative rules that existed before the assertion of sovereignty by the British Crown (at [46]). It follows that the mere use of the word "traditional" does not establish the normative rules necessary for the establishment of native title under the Act. • The normative system under which the rights and interests are possessed, namely the traditional laws acknowledged and customs observed, must have had a continuous existence and vitality since sovereignty. If that normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist. Importantly, any later attempt to revive adherence to the tenets of that former system cannot and will not reconstitute the traditional laws and customs out of which right and interest must spring if they are to fall within the definition of native title (at [47]). • If the society out of which the body of laws and customs arises ceases to exist as a group which acknowledges and observes those laws and customs, the laws and customs cease to have continued existence and vitality (at [50]). The Land Council has established that no Aboriginal person other than Worimi (and some of his immediate family who supported his claimant applications) asserts that native title exists in relation to Lot 576. All of the Aboriginal witnesses called by the Land Council identified as Worimi people. All are aware of the assertions made by Worimi concerning the existence of native title in the Land and gave evidence generally rejecting those assertions. Some of those witnesses were parties to claimant applications for a determination of the existence of native title in respect of land in the Port Stephens area but none of the witnesses have filed native title claimant applications in relation to the Land or land in the immediate vicinity of Lot 576. 138 Worimi says that the Court should draw a Jones v Dunkel (1959) 101 CLR 298 inference from the fact that other Worimi people did not give evidence. I do not accept that submission. The Land Council duly resolved to dispose of the Land in accordance with the NSW Act and has filed this application for a determination of the absence of native title. It called a number of witnesses from different Worimi families, including women who have taken a particular interest in Worimi matters and traditions. No other person has been called to give evidence in support of Worimi's contentions in these proceedings, despite the length of time since his first application was filed and despite the fact that he asserts that native title is held by him as a Worimi man. No other Worimi person has given evidence of the existence of laws and customs that connect Worimi people with Lot 576 or the land adjacent to it that he says is a women's site, prohibited to men. 139 Priscilla Dates gave evidence while in an advanced state of pregnancy with her tenth child. It was clear that the giving of evidence, contrary to her father's case, caused her great personal distress. She accepts that she had previously affirmed two affidavits supporting Worimi's assertions concerning the significance of the Land as a woman's site. She explains that she had been intoxicated when making the affidavits and that she affirmed them because she loves her father. She has expressly recanted those earlier statements. She gave clear evidence that she had never been to Boat Harbour, has never been taught about Aboriginal law or custom and knew nothing about the Land or Boat Harbour until a few years ago when her father first told her that women had their babies there. Prior to the last few years she was unaware of any assertion of her family's association with Boat Harbour and the Land. While Worimi says that Priscilla Dates is too young to remember, she says that her upbringing did not involve the passing on to her of any traditional knowledge, laws or customs associated with the Boat Harbour area or Lot 576. 140 Worimi submits that Priscilla Dates' evidence was unreliable. Priscilla Dates did equivocate on some aspects of her evidence and she was clearly and understandably upset. However, on the key questions of her knowledge of traditional laws and customs and her knowledge of the Land, she remained consistent. I accept her evidence. As Mr Kelvin Dates was not available for cross examination, I take note of his evidence to the extent that it is supported by documentary material or corroborative of the evidence of other witnesses. 141 Worimi submits that Ms Quinlan demonstrated poor recollection. I consider that she demonstrated a good recollection of relevant past events. Worimi points out that a number of the witnesses were concerned about the Land Council's debts and focussed on housing and the needs of the community. I found Ms Quinlan's evidence and that of the other Land Council witnesses persuasive. 142 Those persons are under the pressure of the debts owed by the Land Council but this does not derogate from their sworn evidence. It explains why they may be more ready to sell the Land. That is, I accept that those witnesses who gave evidence, particularly those deeply concerned with Aboriginal law and custom and Aboriginal interests in the area, would be unlikely to wish to sell land of importance to them by reason of custom or culture. I understand that, while they may be loath to part with any part of the land that has been granted to them under the NSW Act, they are ready to sell land that does not otherwise have importance in terms of traditional laws and customs to ensure payment of the Land Council's debts. The issue of the debts and the provision of housing do not of themselves impact on the question whether there is native title in Lot 576. If there is a separate Garuahgal clan of which Worimi is a member through Ellen Dates and Leonard Dates, it would follow that his sister, Ms Quinlan, and his daughter, Priscilla Dates, are also members of that clan. Ms Quinlan identifies as an Aboriginal person of the Worimi tribe but does not know what the Garuahgal clan is. 144 Ms Brown, Ms Ridgeway-Bissett and Ms Quinlan each rejects the existence of or denies knowledge of a Worimi clan known as Garuahgal. In his Notice of Intention to become a Party to the Stockton Bight application, Kelvin Dates described himself as Maaiangal. The evidence called by the Land Council demonstrates that the Land falls within the area claimed by the Maaiangal witnesses to be part of the land of the Maaiangal clan. Their evidence is to the effect that there can only be one clan claiming any particular land. 145 However, Worimi's evidence is that the Land is Garuahgal land and that there is no law saying that there can be only one clan with guardianship over a particular area. There is evidence supporting Worimi's assertion of a Garuahgal clan or of a clan with a very similar spelling. I am not satisfied that there is no such clan. I am not satisfied that, if there is, only one clan can claim particular land. 146 The native title applications over Stockton Bight and Bagnalls Beach were made by the Maaiangal clan. Members of that clan are clear that there are no traditional laws acknowledged or customs observed by Worimi people, at least, by the Maaiangal clan, in respect of Lot 576. If that is so, the existence of the native title applications over other parts of Worimi land do not cast doubt on the assertion of no native title in respect of Lot 576. 147 Worimi asserts that Lot 576 is Garuahgal land. It would follow, on Worimi's case, that the evidence of the Maaiangal clan members is not relevant to his assertion of native title over Lot 576 because it is Garuahgal land. If I were to consider surrounding country, the only claims brought have been by Maaiangal people. I accept the uncontradicted evidence that Lot 576 and the area between Birubi Beach and Boat Harbour is not, under traditional law and custom, a sacred women's site associated with birth and baptism of Worimi/Maaiangal women. The evidence is that for those women there is a birthing site in the vicinity of Salamander Bay. Worimi's case is that it is not the Maaiangal clan but the Garuahgal clan that exercised and is exercising the relevant native title rights over Lot 576. If that is the case, the asserted existence of traditional laws and customs observed by the Maaiangal clan over Stockton Bight and Bagnalls Beach is not relevant to the claim of a Garuahgal women's site on Lot 576. That proposition was rejected by the Land Council's witnesses. Worimi said in cross-examination that he is not an elder and accepted that elder status is not attained until a person reaches the age of 60. • Worimi's mother, Beryl Mildred Dates, is Yorta Yorta. Worimi had asserted that his mother acquired rights under Worimi law by virtue of her marriage to Leonard Dates, a Worimi man. Beryl Mildred Dates was included as part of a claim group in Worimi's first claimant application. The Land Council's witnesses reject this proposition and say that a woman retains her pre-marriage clan or tribal identity. During cross-examination, Worimi said that because Leonard Dates had died, his mother lost her rights and ' has no right to have anything to do with the native title application, because my father is gone '. • Early in the proceedings, at various directions hearings, Worimi said that he could not speak for the Land, Lot 576, because it was a site sacred to women. In his affidavit of 20 January 2006, Worimi said that it was the land between Birubi Beach and Boat Harbour that was a special place for women where they gave birth, that the babies were washed in the freshwater stream running along Lot 576 and that men were not allowed to visit that place. He later said that men could go onto Lot 576 and go to the billabong on or near Lot 576. In the affidavit of 18 December 2007, Worimi said there was no restriction on men going to the billabong and that they could camp on Lot 576. Indeed he says that he has camped on the Land many times since the age of 13 and that, as the custodian, he is obliged to care for and conserve the natural resources of the Land. During cross-examination he said that Lot 576 and the billabong were subject to an avoidance obligation and men could not go there. He said that he had broken the law by doing so. In cross-examination, Worimi identified the billabong as extending into Lot 576. He confirmed that the Poona and the billabong were areas that men were obliged to avoid. 149 The Land Council also points out that Worimi's evidence changed in other ways in cross-examination after he had heard evidence of the Land Council witnesses. For example, Worimi claims in his affidavit of 20 January 2006 that Ellen Dates lived a greater part of her life in Port Stephens and in particular on the land at Boat Harbour and was banished from the land. The Land Council witnesses gave evidence that Ellen Dates lived at Raymond Terrace and before that at the Karuah Mission. Worimi's evidence in cross-examination was that Ellen Dates visited the Land by boat from Karuah Mission. 150 Mr Ridgeway's evidence also casts doubt on Worimi's assertion that he was taught traditional laws or customs by Big Bill Ridgeway. In cross-examination, Worimi expressly rejected the statement in his affidavit of 18 December 2007 that Big Bill Ridgeway taught the children at the Karuah Mission about traditional laws and customs. Rather, Worimi stated that Big Bill Ridgeway only taught the children how to throw boomerangs and spears. 151 Worimi gave evidence that he had a right to go to Lot 576 to camp on the Land and to use the natural resources of the Land. The Land Council submits that the existence of such rights and the exercise of those rights are wholly inconsistent with the notion that the Land is to be avoided by men because it is a sacred site to women. There is inconsistency in Worimi's various statements as to the precise area of the women's site and how much of Lot 576 forms part of that site. I accept Worimi's evidence as to the location of the women's site and the prohibition on men going onto that site, either at the beach or at the billabong. While his evidence has changed, it is not necessarily wholly inconsistent. In cross-examination, Worimi identified the billabong prohibited to men as being on part of Lot 576. That does not preclude men, including Worimi, from going onto other parts of Lot 576, away from the billabong. 152 The fact that Worimi describes some of the practices, such as hunting and fishing methods, differently from the description given by the other witnesses does not derogate from his evidence. It could well be the case that there were different ways of observing traditions. As was pointed out in Western Australia v Sebastian (2008) 248 ALR 61 at [84], a ' body of laws and customs ' does not require identical practice, nor that each member of a group has precisely the same knowledge or comprehends the laws and customs in precisely the same way. 153 Worimi says that his family and his mother before him were removed by actions of others and that the removal was not voluntary. In an area where non-Aboriginal communities developed, many Aboriginal families lived at Karuah, which is also part of Worimi land. In deciding whether claimants, by traditional laws acknowledged and traditional customs observed, have a present connection with land, some interruptions to enjoyment of native title rights and interests is allowed ( Gale at [108], citing Yorta Yorta and De Rose ). 154 The Land Council relies upon the inconsistencies in Worimi's evidence as going to the very heart of Worimi's assertions as to the existence of native title in Lot 576. The Land Council poses the question: ' How could it be said that native title rights and interests are rooted in a normative body of law and custom when the central assertion concerning the [L] and, that it is a sacred site for women to be avoided by men, can be so directly contradicted in Worimi's own evidence? '. 155 The Land Council submits that Worimi's evidence does not represent a legitimate process of cultural reconnection but actions that are ' mischievous and destructive ' in preventing a small local Aboriginal Land Council from exercising its rights under beneficial legislation for the ultimate benefit of its members and the Aboriginal community. The Land Council says that Worimi is motivated by his hostility to the Land Council and its former administrator for a failure to provide housing to his family and alleged poor treatment by the elders and staff of the Land Council. His evidence that his grandparents and parents lived in the Port Stephens area is not in dispute. His assertions that he was taught by his grandmother, father and father's brothers have not been directly disputed. However, his sister, Ms Quinlan, said that she was not told or taught any traditional laws and customs by Ellen Dates, although she lived with her and was female. The likelihood that Ellen Dates observed and taught traditional laws and customs is challenged by the evidence that Ellen Dates was a devout and observant Christian. Further, Worimi's evidence that he was taught by Big Bill Ridgeway is disputed by Mr Ridgeway's son, whose description of his father makes it unlikely that Big Bill was a major source of Aboriginal custom, and was changed by Worimi during cross-examination. Kelvin Dates, Worimi's brother, says that he was not taught any laws and customs by Leonard Dates. However, he was not able to be cross-examined and he was not the eldest son, a position which Wormi claims gave him a special place and right to learn such things. Worimi's assertion that he passed his knowledge of laws and customs to his children has been disputed by his daughter, Priscilla Dates. 157 Some of Worimi's descriptions of individual customs and methods of hunting and fishing and terminology were challenged by the other Worimi witnesses. I find that less persuasive, as different families might well have adopted different methods. 158 No Aboriginal man or woman who gave evidence, other than Worimi, knew of a women's site on or near the Land or between Birubi Beach and Boat Harbour. It is important to recall that the key women's site, the birthing site identified by Worimi, is not on Lot 576. It is on the beach nearby. He has asserted that the waterhole associated with the birthing site was on Lot 576 and that the afterbirth was buried there. Worimi's description of the location of the waterhole on Lot 576 or on land adjacent to Lot 576 was not consistent. 159 Worimi has not provided supporting evidence by other Aboriginal people, in particular Worimi women, of his contentions. There is no other evidence supporting his primary assertion that the land between Birubi Beach and Boat Harbour, including the Land, was, under traditional laws and customs, a place associated with birth and baptism. 160 Worimi's assertions are based upon information and knowledge that he said was passed to him from his father's mother, Ellen Dates, and his father, Leonard Dates, who was the custodian and protector of the land and who passed that role to Worimi as the eldest son. Ms Quinlan and Kelvin Dates' evidence is that Leonard Dates did not pass on any knowledge of traditional laws and customs to them but that does not necessarily contradict Worimi's evidence because Worimi's evidence was that the information was passed on to him as the eldest son. 161 That does not, however, apply to information from Ellen Dates. Ms Quinlan lived with Ellen Dates and says that Ellen Dates was a very religious woman who lived by the Bible and did not live according to any traditional law and custom. Ms Quinlan had not been to the Land herself and has no knowledge of it as associated with a women's site. Ms Quinlan says that Ellen Dates did not pass on any traditional knowledge to her and did not tell her of any women's site on or near the Land. The fact that Ellen Dates did not pass on any knowledge or traditional Aboriginal law and custom was confirmed by Kelvin Dates. It would be expected that information concerning a women's site would have been passed to Ms Quinlan if Ellen Dates were aware of such a site and continued to observe law and custom in relation to it. 162 The Land Council relies on Worimi's own evidence to demonstrate a lack of continuity in the practices said to have been carried out on or near the Land. Worimi acknowledges that, whether or not Lot 576 and the area at Kingsley Beach are women's sites and associated with the birth of children, whether Worimi, Maaiangal or Garuahgal, there has not been a continuous connection with such people and the observance of traditional laws and customs since sovereignty. Accordingly, there has not been the requisite "connection" with the Land as required by s 223(1) of the Act ( Bodney v Bennell (2008) 167 FCR 84 at [171]---[174]). This is not because of the physical presence or absence on the Land. It is because the practices of his own family, that he says are associated with the Land, were not observed at least from the time of his grandmother until his daughter went onto the Land in 2006. I accept that, at least now, Worimi feels strongly about his Aboriginal heritage. Worimi accepts that he has taken some of the customs observed by the Dunghutti people, as described and observed by his wife Cynthia, in practising with his daughter the customs connected with birth and baptism that he said were carried out on the Land and Kingsley Beach. That could be said to reflect the incorporation, in the ordinary course, of other customs and practices into the traditional forms of the Garuahgal people. 163 As in Yorta Yorta , if there had been a women's site on or near the Land and Kingsley Beach, much has changed since it was used. 164 This baptism of Worimi's grandson by his daughter Beryl and wife Cynthia represents an attempt by Worimi to restore what he says his grandmother told him, as amended by his wife's practices. It does not represent continuity. Worimi has claimed that the site is sacred to all Worimi women. No woman has supported this claim, apart from some members of his immediate family who supported his claimant applications. One of the respondents, Deerubbin Local Aboriginal Land Council, sought an order that there was no native title over the subject land. Expert evidence had been filed in support of the claimant applications to which the Deerubbin Local Aboriginal Land Council had responded. This requires that the normative system under which those rights or interests are possessed ... be a system that has had a 'continuous existence and vitality' since sovereignty: Yorta Yorta at [47]. It follows that the non-exercise of native title rights or interests by some of the persons now claiming such rights or interests ... will not inevitably be fatal. It is the normative quality of the normative rules which rendered the Crown's radical title acquired at sovereignty subject to the rights and interests then existing and which are now identified as native title. This entails that it be shown that that society has continued to exist as a body united by its acknowledgement and observance of the traditional laws and customs. It is not enough that there be a body of laws and customs originating in the common acceptance by or agreement of a new society of indigenous peoples to acknowledge and observe them, notwithstanding that they are similar to or even identical with those of an earlier and different society. At [118], Madgwick J found that, on the available evidence, the claimants did not constitute, even as the last member, ' a society that in any presently relevant sense observes traditional laws and customs '. Aboriginality by descent and/or self-identification and acceptance as such is not enough to found a native title claim. It was not shown that there was ' a society that has continued to exist since before sovereignty and which was and is united by its acknowledgement of traditional laws and observance of traditional customs, allowing that the laws and customs may have adapted '. Those laws and customs were not shown to have had a "continuous existence and vitality" since sovereignty. Justice Madgwick concluded that there was no adequate reason not to make a determination that native title did not exist in relation to the subject land. 167 The positive assertion of native title rights and interests requires more than vague assertions of membership of a group of people and of "custodianship" of land. Worimi's facts and contentions comprehensively fail to establish the elements of native title required by s 223 of the Act. They do not establish native title within the meaning of Yorta Yorta . They do not identify the alleged content of the normative body of laws and customs acknowledged and observed by the pre-sovereignty society nor how those laws and customs have continued to be acknowledged and observed substantially uninterrupted. While Worimi is not required positively to establish native title in order to resist the Land Council's application, he must present evidence which is sufficiently cogent with respect to those elements that the evidence does address to cast doubt on the assertion that native title does not exist. 168 Worimi asserts laws and customs in connection with the Land which, he acknowledges, are not observed by other Worimi people. That is consistent with the evidence of the other witnesses. As in Gale , Worimi and those of his family who support his claims do not constitute a society that observes traditional laws and customs in respect of the Land. As in Gale , even if the Land was associated with the birth of children of the Garuahgal people, the present observance by Worimi and one of his daughters is ' at best an attempted re-creation of a society which may well have had native title rights and interests ' (at [119]). 169 As the High Court said in Yorta Yorta , the relevant laws and customs must be rules having normative content. Without that quality, there may be observable patterns of behaviour but not rights or interests in relation to land or waters. Rights or interests created after sovereignty are insufficient, although there may be changes in the traditional laws and customs, at least to the extent that such changes and developments were contemplated by traditional laws and customs. 170 As was said in Yorta Yorta at [47] and repeated in Bodney at [47], if the normative system has not existed throughout the period since sovereignty, the rights and interests which owe their existence to that system will have ceased to exist. The law and custom arise out of and go to define a particular society, a body of persons united in and by its acknowledgment and observance of a body of law and customs ( Yorta Yorta at [49]; Bodney at [46]). ' Unless a society has, and acknowledges and observes, laws and customs under which native title rights and interests are possessed, there can be no native title rights whether communal, group or individual ' ( Bodney at [157]). It is therefore necessary for a person claiming native title to show that the normative system that existed at sovereignty is substantially the same as the one that exists today ( Bodney at [47]). This must be established for each generation to establish that the laws and customs have continued to be acknowledged and observed substantially uninterrupted ( Bodney at [70]---[74]). 171 Where individual native title rights are claimed, they arise out of and depend upon the traditional laws and customs of the community in question ( Bodney at [148]). Rights may be communally held or held by a sub-group or, indeed, by an individual, depending on the nature of the society said to be the repository of the traditional laws and customs that give rise to the native title rights and interests ( Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 at [79] and [80]). In the present case, the native title rights over a Worimi women's site would be held by Worimi women. They deny such rights for Lot 576. 172 Worimi asserts that his evidence establishes that he has rights and interests in relation to the Land which are rooted in pre-sovereignty Worimi society and up to the present time. He says that the evidence establishes that those rights and interests have been transmitted in accordance with the traditional laws and customs and are still observed by Worimi and some members of his family. This, he says, establishes that he has a connection with the Land. 173 Even accepting the existence of a normative system of laws acknowledged and customs observed in connection with the Land, no evidence has been adduced of the conditions that existed between 1788 and the time of the stories said to have been told to Worimi by Ellen Dates and Leonard Dates about their experiences. Worimi seems to rely on a presumption of continuity from pre-sovereignty times to the lifetime of Ellen Dates and Leonard Dates. According to Mr Ridgeway, Aboriginal people lived as part of the non-Aboriginal community around Port Stephens or on the Karuah Mission. There is no basis on which to infer the continuity of the observance of laws and customs, the use and enjoyment of rights and interests in the Land or of Worimi connection with the Land. 174 Worimi submits that native title rights and interests may be possessed by individuals or by a group of individuals in circumstances where other members of the same community or society do not possess those or other native title rights and interests in relation to that area (citing De Rose (No 2) at [33], [34] and [44]; Sebastian ). Whether Worimi can establish native title where other members of the Worimi tribe state that there is no native title over the Land is, Worimi submits, not to the point. He says that his individual rights and interests have been recognised, inter alia in De Rose (No 2) at [30], as sufficient to cast doubt on the Land Council's case of no native title. 175 Worimi has given evidence. His case as to who holds the relevant native title rights and interests has changed throughout the course of these proceedings. In his affidavit of 18 December 2007, he claims that the native title rights and interests are held by his immediate family. However, in cross-examination and in his affidavit of 1 May 2008, Worimi claimed that all Worimi people hold native title in the Land. 176 As to the assertion that Worimi and his immediate family hold the native title rights and interests, I note that three members of his family, namely his brother Kelvin Dates, his sister Ms Quinlan and his daughter Priscilla Dates do not support his case. However, other members of his family have supported his claimant applications. Worimi says candidly that he would have expected other Worimi women to have knowledge of the laws and customs of which he speaks and accepts that they do not. However, the fact remains that Worimi has only adduced his own evidence of the detail of the beliefs and practices that he says relate to the Land. None of his family members have given evidence of the knowledge of or practice of traditional laws and customs. 177 As to Worimi's assertion that all Worimi people hold native title rights and interests in the Land, no other Aboriginal person, including those who have lived near the Land for all of their lives, have given evidence that suggests the existence of laws and customs in relation to the Land. 178 Worimi's case is that he and he alone seems to have the requisite knowledge, apart from those to whom he has passed it within his own family. Accordingly, it is hard to see what further evidence the Land Council could have called to answer Worimi's evidence other than from other members of Worimi's family. The witnesses for the Land Council include representatives of families long associated with the area. They give evidence not only of their own understanding but they also speak of their parents and, indeed, Worimi's grandmother and father. 179 Whether Worimi's claim is for himself, his immediate family or for all Worimi people, the claimed rights and interests must exist under a normative body of traditional law and custom. The asserted present connection with the claimed area must be a connection by and under the traditional laws acknowledged and customs observed by the relevant group or society. There must be substantially uninterrupted continuity in the acknowledgement and observance of the normative system of traditional law and custom in which the claimed rights and interests find their foundations. Worimi has not adduced evidence supporting such a normative body of law and custom. He has not brought any evidence corroborating his own evidence. In particular, he has not brought any evidence to support his claim of a women's site on or near Lot 576. Nor has he adduced sufficient evidence regarding other activities, including hunting and fishing, said to have been carried out on or near Lot 576. 180 The Land Council submits that Worimi adduced no admissible evidence of his ancestry, the nature of the pre-sovereignty society or the foundational traditional laws and customs from which it is alleged Worimi's native title rights and interests derive. It says that there is no admissible evidence of the continued observance (substantially uninterrupted) of those laws and customs to the present day. It submits that the simple description of land and people as Worimi people and "traditional Worimi country" is not evidence of the continued association with an identified area of land by an identified Aboriginal society or group from before the acquisition of sovereignty. In any event, the Land Council says that Worimi's evidence itself amply demonstrates a clear break in the continuity of the acknowledgement and observance of the very traditional laws and customs that he alleges are associated with the area said to be a sacred women's site and including Lot 576. 181 Worimi says that the laws and customs concerning the Land and Kingsley Beach were passed to him from his father and his father's mother. Let it be assumed that that information has been passed down from individual to individual (from the father to the eldest son) since pre-sovereignty. The evidence from Worimi and the Land Council witnesses, including members of Worimi's family who would be part of the Garuahgal clan that he says is the relevant society, is to the effect that any laws and customs with respect to the birth of children ceased to be observed until Worimi recently sought to reinvigorate them. 182 The evidence is that there is no Maiaangal birthing site on or near the Land or a birthing site for Worimi women generally. Acceptance of this evidence does not require, as Worimi submits, a full account of past and present birthing customs of Maiaangal or Worimi women ( Jango at [84]). 183 The evidence from the Land Council witnesses, and from Worimi himself, establishes that, whether or not there was once a women's site on or near the Land, the laws and customs in relation to such a site have not continued to be observed. The lack of continuity in the laws acknowledged and customs observed in connection with Lot 576 is sufficient to establish a prima facie case of no native title. 184 It follows from Yorta Yorta at [51]---[56] that native title, if it existed pre-sovereignty, ceases to exist for the purposes of the Act if the society, being the Worimi people, the Maiaangal clan or the Garuahgal clan, ceased to acknowledge and observe the laws and customs that Worimi describes. The rights and interests to which those laws and customs give rise are not possessed under traditional laws acknowledged and traditional customs observed. They ceased to exist and the later adoption of the laws and customs does not give rise to rights and interests rooted in pre-sovereignty traditional law and custom. 185 The changes in Worimi's description of the persons who, he says, observe or observed the traditional laws and customs in respect of the Land have not assisted in the analysis of the evidence. As set out in Worimi 2007 and Worimi 2006 , he has changed the identification of the persons said to be relevant. As to the identification of family members in the claim group, Worimi has included, variously apart from himself, his wife and children, all his sisters and their daughters and his mother. He was not consistent in his evidence, asserting that he was bringing the claim on behalf of the Garuahgal women, his family and all Worimi people. Irrespective of the group said to hold native title over the Land, the requirements of s 223 of the Act are not satisfied. While Worimi was not required to establish native title in accordance with s 223 of the Act in order to resist the Land Council's application, given the time available to Worimi since these proceedings were commenced, he has had ample opportunity to formulate his contentions with reference to s 223 of the Act in order to cast sufficient doubt on the Land Council's case. 186 The evidence is that the observance of the traditional laws and customs ceased so far as a women's site on the Land is concerned. The evidence is not of adaptation of traditional laws and customs but of substantial interruption, amounting to cessation, of observance. 187 Worimi submits that the evidence of the seven Land Council witnesses is insufficient and that anthropological evidence is necessary or, at least, evidence from many other Worimi witnesses before the evidence from those seven witnesses can be accepted. This ignores the fact that the decision of the Land Council to dispose of the Land was approved at a meeting held in accordance with the NSW Act and has been the subject of a number of Land Council meetings. The application has been notified as required and it is not in dispute that Worimi's applications are known to other Worimi people. Despite this, there has been no other person who has sought to oppose the application in the Court. 188 Much has been made in submissions of which party is better able to call evidence and the effect on the proof of a negative proposition. On one hand, the Land Council has not called evidence from all the Worimi people. It has called seven witnesses, some of whom have studied Worimi history and have knowledge of Worimi laws and customs and others from Worimi's family. It has, as I have said, been authorised to bring this application. Worimi asserts that (at least) his family, as part of the Garuahgal clan, has native title rights and interests over the Land. It is Worimi who has the greater means to produce evidence from his family or from other Garuahgal or Worimi people to contradict the proposition of no native title. In particular, if Worimi asserts that Lot 576 and Kingsley Beach are a women's site of which he cannot have personal knowledge, the absence of any evidence of the laws and customs associated with that site from a woman supporting his assertion is telling. The only evidence in support of Worimi's claims was filed in respect of his claimant applications and was from Worimi's mother, who is Yorta Yorta, and from his wife, sister and daughters (Priscilla Dates changed her evidence in these proceedings), who say little more than that they take their information from Worimi and support his assertions. The failure on Worimi's part to call corroborative evidence lessens the burden of proof on the Land Council to establish the negative proposition ( Apollo Shower Screens at 565). It does not increase the burden on the Land Council. 189 I am satisfied that there has not been the necessary connection with the Land and the observance of the asserted laws and customs. This is not because of Worimi's temporary absence in Western Australia. It is because, on the evidence, I am satisfied that there was no women's site on or near Lot 576 and that there was no use of a waterhole on or near Lot 576 associated with the birth of Worimi children. If there were such a site or such use, it has long since ceased to be used. Worimi's attempt to revive such use in the case of his daughter and the birth of his grandson is insufficient to give rise to native title rights and interests in the Land. 190 The group or communal rights that form the basis of Worimi's case are in respect of the claimed women's sight on or near the Land. The characterisation of Worimi's asserted native title rights and interests has changed over time. Worimi also claims rights in respect of his own observance of traditional hunting and gathering customs on the Land. However, Worimi appears to assert that these rights are held by all Worimi people or at least by the Garuahgal clan. There is no sufficient evidence that any such rights, whether individual, group or communal, are possessed under a normative system of traditional laws acknowledged and customs observed by Worimi people or by the Garuahgal clan. Worimi's account of traditional hunting and gathering law and custom has been disputed by the Land Council's witnesses. 191 To the extent that Worimi asserts individual rights over the Land, they seem to be based on his evidence that, as the eldest son, he was the recipient of the information and was made the custodian of the Land. He does not suggest his custodianship is only for his own or, indeed, only for his immediate family's benefit. The evidence does not establish that Worimi's individual rights are possessed under a body of normative rules, under the traditional laws acknowledged and the traditional customs observed by the Worimi people or even by the Garuahgal clan ( De Rose (No 2) at [31]-[44]). As such, it is hard to see how his asserted rights regarding custodianship of the Land are individual native title rights. The same applies to his asserted group or communal rights said to be enjoyed by his immediate family, Garuahgal women or Worimi women generally in respect of any women's site on or near Lot 576 and to the rights said to be held by all Worimi people in respect of hunting and gathering activities on or near the Land. 192 However, in the context of whether Worimi's evidence casts doubt on the assertion that there is no native title in respect of the Land, I have considered his claims to such individual rights, said to have been handed to him by his father in circumstances where, he says, he is the only person who has present knowledge of those rights. I have also, in that context, considered his asserted traditional hunting and gathering rights and his claim to group or communal rights to the extent that he says that there is a women's site on or near the Land. In the case of group and communal rights, a claim by a group or community may succeed in establishing native title even though not all of the members of the group or community have acknowledged and observed traditional laws and customs, as long as the group or community as a whole has done so sufficiently ( De Rose (No 2) at [58]). There must, however, be a link between the rights and interests in relation to the Land said to be possessed by the group or community and the traditional laws and customs that the group or community claims to have acknowledged and observed ( De Rose (No 2) at [60]). 193 As to Worimi's assertion of his own use and use by his family of the Land for traditional purposes, again I am satisfied that any such traditional use had ceased and has been recently revived by Worimi. Priscilla Dates confirms that she was not taken there as a child and was and is unaware of any connection with the Land. Ms Quinlan did not go there with her parents, who were also Worimi's parents and was and is unaware of any connection with the Land. Ms Quinlan says that Worimi's father's mother, Ellen Dates, with whom she lived and whom Worimi attributes as the source of his knowledge of traditional law and custom, did not observe traditional law and custom at all and did not do so in connection with Lot 576. Kelvin Dates' evidence supports that of Ms Quinlan. I accept that Worimi has made some effort to revive such observation but there has been no such connection with the Land for at least two generations. Even accepting that there were laws acknowledged and customs observed in connection with the Land pre-sovereignty, there was no continuity of that observance. Worimi's evidence is insufficient to cast doubt on the Land Council's case that there is no native title over Lot 576. The Land Council is entitled to a determination that there is no native title over the Land. I certify that the preceding one hundred and ninety-four (194) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

non-claimant application under native title act 1993 (cth) seeking determination that no native title exists over land previous claimant applications for determination that native title exists struck out for not meeting requirements of act previous claimant joined as third respondent under s 84(5) of the act third respondent opposes non-claimant application role of minister in proceedings minister has not abandoned right to participate minister not required to establish interest to remain a party burden of proof evidentiary burden requirement to prove negative proposition on balance of probabilities no presumption of native title third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred third respondent has not adduced sufficient evidence to cast doubt on applicant's case no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed applicant entitled to determination that there is no native title over the land native title

2 At some time prior to 10 June 2005 the applicant was granted a Student (Temporary) (Subclass 573) visa which entitled the applicant to remain in Australia for the purpose of attending a course of education conducted by a registered provider of education, in this case the University of South Australia, under the Education Services for Overseas Students Act 2000 (Cth) (the ESOS Act). 3 The ESOS Act regulates education services for overseas students. It provides for the registration of approved providers of courses of education or training (course) for overseas students. These providers are designated registered providers. Only registered providers can provide a course to an overseas student: s 8 of the ESOS Act. 4 Obligations are imposed upon registered providers. They must, for example, give the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs particulars of any breach by a student of a student visa condition relating to attendance or satisfactory academic performance as soon as practicable after the breach occurs: s 19(2) of the ESOS Act. Further obligations are imposed upon registered providers by s 20 of the ESOS Act. The notice must be in a form approved by the Secretary of the respondent's Department: s 20(3) of the ESOS Act. It also must comply with s 20(4) of the ESOS Act. 7 On 10 June 2005 the University of South Australia, as the registered provider, purported to give the applicant notice under s 20 of the ESOS Act asserting that the applicant had breached a condition of her Student visa relating to satisfactory academic performance by failing to meet course requirements and by being precluded from the course. 8 Section 137J of the Migration Act 1958 (Cth) (the Migration Act ) applies if a notice is sent to a non-citizen under s 20 of the ESOS Act. The giving of a notice under s 20 of the ESOS Act activates the provisions of s 137J(2) of the Migration Act , which has the effect of cancelling the student's visa by force of the section at the end of the 28 th day after the day that the notice specifies as the date of the notice unless the student complies with one or other of paragraphs (a) or (b) of subsection (2) of s 137J. Nothing needs to be done by the Minister or any other party to effectuate the cancellation of the non-citizen's visa. 10 In this case, the date specified in the notice was 10 June 2005, being the date of the notice and the 28 th day after the notice was 8 July 2005. 11 The applicant did not comply with either paragraph of s 137J(2) which meant that if s 137J(2) applied the visa was cancelled as at 8 July 2005. The visa would cease to have effect on the day of cancellation because of the provisions of s 82(1) of the Migration Act ,. 12 Section 137K of the Migration Act allows a student whose visa has been cancelled under s 137J to apply in writing to the Minister for revocation of the cancellation: s 137K(1) of the Migration Act . Section 137L empowers the Minister to revoke the statutory cancellation which has occurred under s 137J of the Migration Act . 13 On 18 July 2005 the applicant applied in writing under s 137K to the Minister for revocation of the cancellation. The grounds upon which the Minister may revoke a cancellation on an application under s 135K are provided for in s 137L of the Migration Act . You have failed 14 out of 17 courses of study attempted in 2003 and 2004. You failed to seek academic advice/support despite your Education Provider recommending you do so. You appealed the Education Provider's decision, but due to insufficient evidence, your appeal was denied. The diagnosis does not specify that your condition would lead to your inability to meet your course obligations. It therefore continued to cease to have effect. 16 On 9 August 2005 the applicant applied to the Migration Review Tribunal (MRT) for a review of the delegate's decision. 17 On 17 August 2005 the delegate made an entry in the applicant's file: '17 August 2005 --- reversed cancelled --- Uddin v MIMIA'. The respondent's solicitor has deposed that the respondent accepted the correctness of a decision of Scarlett FM in Uddin v Minister for Immigration [2005] FMCA 841 (' Uddin '). 18 On 7 June 2005 Scarlett FM had held in identical factual circumstances that a notice given purportedly pursuant to s 20 of the ESOS Act, did not comply with s 20(4) of that Act: Uddin . The Federal Magistrate held that because s 20(4) of the ESOS Act had not been complied with, s 137J of the Migration Act was not invoked and therefore the applicant's visa was not cancelled by operation of that section. 19 The notice given in Uddin was in the same form as the notice given in this matter. It did not advise the applicant that he was required to attend in person before an officer within the meaning of the Migration Act but, instead, advised him that he had to report personally to a compliance officer. It did not set out the effect of s 137J and s 137K of the Migration Act in that it did not inform the applicant that the applicant could avoid the consequences of s 137J by making himself available to an officer for the purpose of explaining the breach alleged in the notice. The notice did not bring to the applicant's attention the provisions of s 137K(2) and, in particular, advise the applicant that because of the provisions s 82 an applicant cannot apply for revocation when the visa would no longer have been in effect in any event had the visa not been cancelled under s 137J. Lastly, it did not bring to the applicant's attention the provisions of s 82 so as to allow the applicant to understand the provisions of s 137K(2). 20 Scarlett FM found that s 20(4) of the ESOS Act was mandatory in its terms. The notice did not comply strictly with the requirements in s 20(4) of the ESOS Act and, as I understand his reasons, s 137J(2) of the Migration Act therefore was not invoked and the Student visa was therefore never cancelled. 22 The declarations made by the Federal Magistrate were those sought by the applicant in that proceeding. They reflect his Honour's reasons and are unambiguous in their terms. The applicant's visa was, in terms of those declarations, never cancelled and the applicant was never an unlawful non-citizen. 23 After Scarlett FM's decision, the Department identified visas which were purportedly cancelled pursuant to s 137J of the Migration Act where the purported cancellation was affected by the same error as identified in Uddin . The applicant was one of those visa holders. 24 On 18 August 2005 the same delegate notified the applicant of an intention to consider cancelling the applicant's visa under s 116 of the Migration Act notwithstanding that the delegate had previously assumed that the visa had already been cancelled by operation of s 137J of the Migration Act on 8 July 2005. 25 Section 116 of the Migration Act empowers the Minister to cancel a visa if the Minister is satisfied that any of the circumstances in s 116(1) have occurred. If the Minister is satisfied that the holder has not complied with a condition of a visa, the Minister may cancel a visa: s 116(1)(b) of the Migration Act . In the notice given the applicant by the delegate, the delegate identified the ground for cancelling the applicant's visa as being a 'possible breach of condition 8202(3)(b) for failing to achieve satisfactory academic results in school years 2003 and 2004', and 'Education Provider has reported visa holder as failing 14 courses out of 17 during 2003 and 2004'. 26 When, on 18 August, the delegate gave notice of his intention to consider cancellation of the applicant's visa under s 116 the MRT was still seized with an application for review of the decision by the same delegate not to revoke the cancellation of the applicant's visa under s 137L of the Migration Act . The MRT was advised that the Department had amended its records 'to remove the automatic student visa cancellation and record that the original student visa, expiry date 15 March 2006, has been reinstated'. Although the Department's file has not been provided, from the evidence contained in the Department's records, the the (sic) Tribunal finds that the s 20 notice sent to the review applicant is in the same form as that considered by Scarlett FM in Uddin . For the reasons set out in Uddin , the Tribunal therefore finds that the s 20 notice is defective due to its failure to comply with sub section 20(4)(b) of the ESOS Act . Given the above, and given the action of the Department in reinstating the review applicant's student visa, the Tribunal finds that as a matter of law and of fact, the review applicant's student visa is not cancelled. As a result, the decision not to revoke the cancellation is also of no effect. However, as there is a purported decision not to revoke the cancellation before the Tribunal, the Tribunal accepts that it has jurisdiction to make a decision on the decision under review: MIMIA v Ahmed [2005] FCAFC 58. Nevertheless, it concludes that the only course of action open to it is to set aside the decision not to revoke the automatic cancellation and to substitute a decision that the review applicant's visa is not cancelled. However, nothing turns on that in this proceeding. 30 On 30 August 2005 the delegate decided to cancel the applicant's visa pursuant to s 116 of the Migration Act . It is that decision which is impugned. The delegate of the Minister of Immigration & Multicultural & Indigenous Affairs did not have jurisdiction to make the decision made on 30 August 2005, by which he purported to cancel the Applicant's Student (Temporary) (Class TU) visa pursuant to s. 116 of the Migration Act 1958 (Cth) ("the Act ") . 33 The ground for quashing the decision rather assumes that s 137J of the Migration Act operated in its terms so as to cancel the applicant's Student (Temporary) (Class TU) visa on the date specified in the s 20 notice. 34 The applicant in this proceeding put her case in different ways. In the applicant's outline of argument, and in oral argument, her counsel contended that because a notice had been given under s 20 of the ESOS Act and because the applicant had not complied with either paragraph of s 137J(2) , the applicant's visa was cancelled by operation of s 137J. Because of the provisions of s 82 , it ceased to have effect on that day. 35 The applicant's counsel argued that as at 18 August 2005, when the delegate notified the applicant of an intention to cancel the applicant's visa under s 116 of the Migration Act , and as at 30 August 2005 when the delegate decided to cancel the applicant's visa, there was no visa in existence. It was put that 'as a matter of historical fact (the applicant was not) the holder of a Student (Temporary) (Class TU) visa on 30 August 2005'. The decision therefore to cancel was not valid. 36 It was further contended that the subsequent decision of the MRT setting aside the decision not to cancel and substituting 'the decision that the visa is not cancelled' did not have retrospective effect and only operated from the date of the decision. Therefore, it was contended at the time the decision was made on 30 August 2005 to cancel the applicant's visa, the applicant was not the holder of a visa and the decision was invalid. 37 That last argument had to be put because, if the MRT decision had the effect of deciding that the visa was never cancelled at any time then, of course, the first limb of the argument cannot be made out because there had been no cancellation of the visa and the Minister's delegate could proceed to consider the matter under s 116 of the Migration Act . In summary, the applicant argued that the applicant's visa was cancelled by operation of s 137J and the applicant was and remained an unlawful non-citizen until the MRT made its decision. It was submitted, therefore, that whilst the visa remained cancelled, there could be no further decision by the Minister to cancel that visa. 38 Both parties have asked me to assume that Uddin was correctly decided. I think that assumption can be made because if Uddin was incorrectly decided then the applicant's visa was cancelled by operation of s 137J on 8 July 2005 and that would be an end to the matter. To assume that Uddin was correctly decided is to make an assumption most favourable to the applicant. Therefore I will assume that Uddin was correctly decided. 39 It is necessary to determine the effect of the decision in Uddin . Uddin stands for the proposition that unless the notice given by the registered provider under s 20 of the ESOS Act complies strictly with subsection (4) (or at least paragraphs (b) and (d) of that subsection), the notice given is not a notice under s 20 of the ESOS Act and the automatic cancellation provisions of s 137J never apply. That is clear from the Federal Magistrate's reasons but made even clearer by the declarations which the Federal Magistrate made. The first declaration is that the applicant's visa was not cancelled by operation of law under s 137J. The second declaration, which is consistent with the first, is that the applicant was not an unlawful citizen at any stage. 40 If Uddin was correctly decided and the effect of the decision is as I have described it, then the applicant's argument fails at its first premise. The applicant's visa was never cancelled by operation of s 137J and it did not cease to have effect. It follows that the applicant was the holder of a visa as at 30 August 2005 and the delegate was empowered to cancel that visa. 41 I pointed out in argument that if Uddin is correct then the applicant's visa was not cancelled by operation of s 137J and, therefore, there was a valid visa in existence at the time the Minister's delegate made his decision on 30 August 2005. 42 The applicant's counsel argued, contrary to the decision in Uddin , that because the Migration Act provides for a procedure to review the cancellation (s 137K) and revoke that cancellation (s 137L and s 137N) , and because that decision is itself subject to a merits review by the MRT (s 338(3A)) 'in the context of the Act , the automatic cancellation is valid unless and until it is revoked by an administrative decision maker under s 137L , or otherwise subject to orders by a court of competent jurisdiction'. 43 There are difficulties with that argument. First, it is contrary to the decision in Uddin which I have been asked to assume is correct. Secondly, and more importantly, the argument is contrary to the provisions of the Migration Act . Section 137J applies if a notice is sent to a non-citizen under s 20 of the ESOS Act . Uddin , and the applicant's argument, assumes that no notice has been sent under s 20 of the ESOS Act . Therefore, it must follow that s 137J does not apply. Therefore, if no notice is sent to a non-citizen under s 20 of the ESOS Act , the non-citizen's visa is never cancelled under s 137J of the Migration Act . There can be no automatic cancellation. That is because the condition precedent for the operation of s 137J(2) has not been satisfied. No notice was given under s 20 of the ESOS Act . 44 It is true that the Migration Act allows for an applicant to apply to the Minister for revocation of the cancellation: s 137K of the Migration Act . However, the Minister may on such an application only revoke the cancellation for the reasons in s 137L(1). The Minister cannot revoke the cancellation because no notice was given under s 20 of the ESOS Act . Of course, one would not think that would be a reason for revocation of cancellation. If no notice is given, there could be no cancellation. 45 That procedure and the fact that that process is subject to merits review by the MRT does not support the proposition that where no notice is given under s 20 of the ESOS Act the visa holder's visa is automatically cancelled under s 137J and remains cancelled until revoked by an administrative decision maker or a court of competent jurisdiction. 46 If the applicant's argument were right it would mean that a non-citizen would become an unlawful non-citizen for a period until the cancellation was revoked or set aside. The non-citizen would be liable to detention (s 189) and removal from Australia (s 200). That would be in circumstances where no notice had been given under s 20 of the ESOS Act . In my opinion, the applicant's primary argument must be rejected. 47 The only relevance of the notation which was made on 17 August 2005 is that it shows that the Minister's delegate recognised that s 137J had not operated to cancel the applicant's visa. It was not a decision by an administrative decision maker. It was, as I say, merely a recognition that the applicant still held a visa because it had not been cancelled by operation of s 137J of the Migration Act . 48 The applicant also contended that the decision of the MRT given on 13 September 2005 did not have any retrospective effect and was only effective prospectively. 49 If my analysis is correct, the decision of the MRT was otiose. If there was never a notice given under s 20 of the ESOS Act , s 137J never operated in its terms and there was never a cancellation of the applicant's visa. 50 In any event, the MRT, in deciding that the visa had not been cancelled, was only declaring (if it had jurisdiction to do so) that s 137J had never operated. 51 Because I am of the opinion that no administrative decision was made which gave rise to the cancellation of the visa, I do not need to address the purport of the decision of the MRT given on 13 September 2005. It follows that I do not need to determine whether or not the MRT had power to reach the decision which it did or whether its decision was prospective or retrospective. 52 After I had reserved my decision I raised some matters with counsel and invited some short submissions. Both counsel responded. The applicant's counsel's response raised a different argument to that which was presented at the hearing. 53 The applicant's counsel submitted that the applicant's visa was treated by the Department, up until at least 17 August 2005, as having been cancelled pursuant to s 137J. It was submitted that, in effect, by the Department treating the visa as having been cancelled pursuant to s 137J the Department had made a 'decision' to treat the visa as cancelled. It was not explained how the Department could make a 'decision'. It was submitted that 'decision' is voidable rather than void and therefore there was no valid visa in existence until the MRT overturned the 'decision' on 13 September 2005. Thus, it was submitted, when the Minister's delegate made his decision on 30 August 2005 to cancel the applicant's visa, there was no such visa in existence and therefore the decision is void. The applicant submitted that because the 'decision' was voidable and not void the 'decision' is valid unless and until it is set aside. The applicant's contention was effectively that, for the period of time mentioned, someone I think in the Department had made a decision to treat the applicant's visa as having been cancelled. The applicant did not contend that the visa was cancelled but rather there was a decision to treat it as cancelled. 54 There are a number of difficulties with the argument. First, s 137J is, in my opinion, unambiguous. It operates to cancel the non-citizen's visa where a notice has been sent to a non-citizen under s 20 of the ESOS Act . As I have already said, no decision is made to cancel a visa. Section 137J itself operates to cancel the visa. 55 There is nothing, in my opinion, in the Act or in Uddin which would support the applicant's contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen's visa. The only decisions which have to be made relate to the Minister's power to revoke the cancellation effected by s 137J(2). 56 Section 137K allow a non-citizen 'where visa has been cancelled under s 137J ' to apply to the Minister for revocation of the cancellation. That section also recognises that the cancellation is effected by s 137J not by any administrative decision. The Minister may revoke the cancellation for any of the reasons in s 137L(1) of the Migration Act . The Minister may also revoke cancellation on her or his own initiative: s 137N of the Migration Act . If the Minister does revoke the cancellation under s 137L or s 137N 'the visa is taken never to have been cancelled under section 137J ': s 137P(1) of the Migration Act . 57 The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister's decision making only extends to considering whether the statutory cancellation should be revoked. 58 It follows that the applicant's visa was either cancelled or not cancelled on 8 July 2005 depending upon whether s 137J operated. No administrative decision was made on or after that date to cancel the applicant's visas. It follows that because there was no decision the question of whether it was void or voidable does not arise. 59 For those reasons, that further argument must be rejected. 60 The applicant conceded that if I concluded there was a valid visa in existence when the delegate decided to exercise power under s 116 of the Migration Act , the application could not succeed. I have so concluded. 61 For the reasons I have given it follows that if, contrary to Uddin , s 137J operated to cancel the applicant's visa then the applicant has become an unlawful non-citizen. On the other hand, if Uddin is correctly decided, then the applicant was the holder of a visa as at 30 August 2005 when that visa was cancelled pursuant to s 116 of the Migration Act . Either way the applicant's visa has been cancelled and she has become an unlawful non-citizen. 62 It follows that the application must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

application for a declaration that the respondent's decision to cancel the applicant's visa using s 116 of the migration act 1958 (cth) was void applicant held temporary (student) visa failed to comply with condition 8202 consideration of effect of an incompetent s 20(4) education of overseas students act notice application of uddin where notice is incompetent automatic cancellation provision in s 137j of migration act cannot operate applicant's visa was not automatically cancelled therefore subsequent decision to cancel pursuant to s 116 for breach of condition is within power application dismissed. migration

Saulyak LLC, a company incorporated in the Ukraine, holds an exploration licence, an activities licence and an associated investment agreement which permits it to undertake exploration activities and trial mining in respect of the Saulyak gold deposit. The second applicant, a wholly owned subsidiary of the first applicant, holds all the issued shares in a company, Eurogold (Bermuda) Limited, which in turn, through subsidiaries, controls 99.72% of the issued shares in Saulyak LLC. The first applicant is a publicly listed company, incorporated and carrying on business in Australia, whose shares are listed on the Australian Stock Exchange and the Alternative Investment Market (AIM), in London. 2 On 30 April 2006, the applicants and the respondents entered into an agreement (the Sale Agreement) whereby the first respondent agreed to purchase the shares held by the second applicant in Eurogold (Bermuda) Limited --- and thereby obtain control of Saulyak LLC and its rights in the Saulyak gold deposit. Under the Sale Agreement the second respondent (Oxus Gold), guaranteed the performance of the obligations of the first respondent. The first respondent is incorporated in Malta, and is a subsidiary of Oxus Gold, a public company, which is incorporated and carries on business in the United Kingdom. The Sale Agreement contained a term which permitted the respondents to terminate the agreement in the event of a material adverse change in circumstances affecting the sale assets. 3 On 28 June 2006, two days before the settlement date of the Sale Agreement, the respondents issued a notice in writing (the notice of termination) whereby they exercised a power to terminate the agreement on the grounds of a material adverse change in circumstances. The notice of termination contained allegations which impugned the standing of the tenements held by Saulyak LLC and the quality and extent of the reserve at the Saulyak gold deposit. Further, Oxus Gold repeated an allegation, made in the notice of termination, impugning the extent of the reserve of the Saulyak gold deposit in a statement which it published on its website. On 11 July 2006, the first applicant made an announcement to the Australian Stock Exchange. In that statement the first applicant referred to the allegations made by the respondents in the notice of termination and purported to refute the allegations. By a letter dated 31 July 2006, the applicants advised the respondents that they regarded the notice of termination as repudiatory conduct which they accepted. The applicants thereby terminated the Sale Agreement. 4 On 31 July 2006, the applicants filed an application and statement of claim, in which four causes of action are pleaded against the respondents. Two of the causes of action allege contraventions of the Trade Practices Act 1974 (Cth) (the TPA). The first such cause of action alleges that the statement in the notice of termination impugning the standing of the tenements was misleading or deceptive, and that the first applicant has by reason thereof suffered and is likely to suffer loss and damage, being the likelihood of an increased difficulty in raising capital, and finding other parties to join with, or assist, it in developing the Saulyak gold deposit. It is alleged that the respondents are liable for the loss and damage because the respondents knew when they issued the notice of termination, that the first applicant would be required to repeat the allegations publicly, by way of making a public announcement to the Australian Stock Exchange. This cause of action is referred to as the termination representation cause of action. 5 The second TPA cause of action is founded upon the publication by Oxus Gold on its website, which is downloadable in Australia, of a statement which refers to the issue of the notice of termination, and which repeats the allegation impugning the extent of the reserve at the Saulyak gold deposit. The applicants allege that the representations made in that statement were misleading or deceptive, and that the first applicant has suffered and is likely to suffer damage because the statement impugns the value of an important asset of the first applicant. 6 The third cause of action is that the applicants have suffered loss and damage by reason of the respondents' alleged repudiatory conduct in sending the notice of termination and the applicants' acceptance of that repudiation. The fourth cause of action arises from a dispute between the parties as to the construction of a loan agreement dated 9 June 2006, which is a related dispute. 7 On 18 August 2006, I granted the applicants leave to serve the application and statement of claim on each of the respondents out of the jurisdiction ( Eurogold Limited v Oxus Holdings (Malta) Limited [2006] FCA 1270). Oxus Gold now applies under O 9 r 7 of the Federal Court Rules , alternatively pursuant to the implied powers of the Court, for orders that the application be set aside, or alternatively, that the orders of 18 August 2006 be discharged. In the further alternative Oxus Gold seeks orders that the proceeding be stayed on the basis that the forum is inappropriate. 8 Oxus Gold did not rely on affidavit evidence challenging the factual allegations made in the affidavits of Mr Peter Lynton Gunzburg in support of the applicants' claims. This is because, so it was submitted, the allegations made by the applicants of contraventions of the TPA by the respondents are "trivial or insubstantial". Oxus Gold relied upon four matters in support of its contention. 11 Firstly, Oxus Gold said that the claims based upon the TPA are misconceived because s 51AF(2)(a) provides that s 52 of the TPA "does not apply to conduct engaged in in relation to financial services". Oxus Gold submitted that, the conduct in question, namely, the making of the representations about the Saulyak gold deposit, in the notice of termination, which were repeated in the announcement to the Australian Stock Exchange, and on Oxus Gold's website, was "conduct engaged in in relation to financial services". Oxus Gold said that if allegations of misleading or deceptive conduct are to be made in respect of that conduct, the allegations should be made by reference to contraventions of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act), and not the TPA. 12 Secondly, Oxus Gold contended that the termination representation claim was trivial or insubstantial, because the notice of termination was sent to the applicants, and there was no plea that the applicants relied upon the terms of the impugned representations contained in the notice of termination. 13 Thirdly, Oxus Gold said that its publication of the impugned statements on the Oxus Gold website was conduct which occurred outside Australia, and there was no plea that the statement was downloaded in Australia. 14 Fourthly, Oxus Gold complains that there was no plea of reliance by any person upon the impugned statements and, therefore, there was no plea of causation. It was also contended that there was no plea of actual loss and damage by the applicants --- all that was pleaded was the likelihood of future difficulties for the first applicant in relation to the exploitation of the Saulyak gold deposit. 15 The question of the jurisdiction of this Court to consider and determine a justiciable controversy which contains both state and federal aspects, was considered by the Full Court in the case of Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 ( Johnson Tiles ). In Johnson Tiles , the Full Court dealt with an application which pleaded a claim alleging misleading or deceptive conduct under the TPA, as well as a common law claim in negligence. 16 The Full Court held that the cause of action based on misleading or deceptive conduct under the TPA was untenable, and declined, in effect, to permit the applicant to pursue the TPA claim. The Full Court then considered the question of the jurisdiction of the Court to determine the common law claim based on negligence. The content of the controversy depends upon what the parties have done, their relationships and the laws attaching rights or liabilities to their conduct and relationships. It is not ascertained merely by reference to the proceedings which are instituted but may be illuminated by their conduct and by the pleadings in which issues and controversy are defined and claims for relief set out. Further, the federal claim must be a substantial aspect of the controversy if that controversy is to attract federal judicial power. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power. It is equally well accepted that if the federal question is decided adversely, is struck out, or is found not necessary to be decided the matter does not cease to be in the jurisdiction of the Court: Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 18 FCR 212; Unilan Holdings Pty Ltd v Kerin (1993) 44 FCR 481 and Moorgate at 476 (see generally, the article by Allsop J, "Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002" (2002) 23 Australian Bar Review 29 at p 41 ff). The question is not to be assessed by reference to the strength or weakness of the federal claim as pleaded or whether it is liable to be struck out. It is recognised that even if a federal claim is liable to be struck out, this does not mean that the Court has no jurisdiction to consider a remaining common law claim. The inquiry is a wider inquiry. The content of the controversy is to be assessed by reference to "what the parties have done, their relationships and the laws attaching rights or liabilities to their conduct and relationships". Whether the conduct underlying the federal claim is a trivial or insubstantial part of the whole controversy is a "matter of impression and practical judgment". 20 In this case, the two public companies have become embroiled in a dispute about whether there were reasonable grounds for making statements --- which have become public - impugning the standing and quality of the Saulyak gold deposit and the legal effect of the statements. The quelling of the controversy involves the resolution of, amongst other issues, the question of whether the respondents are, on the grounds referred to in the notice of termination, entitled to terminate the Sale Agreement, and whether the respondents are liable for the damage allegedly suffered and likely to be suffered by the first applicant by reason of the statements in the notice of termination having been made public. The making of the statements and whether those statements were based on reasonable grounds, or are misleading or deceptive, goes to the core of the controversy between the parties. In my view, the federal claims cannot, therefore, be said to be a "trivial or insubstantial aspect of the controversy". It follows that I do not accept that it is inappropriate for the Court to exercise jurisdiction in respect of the resolution of the common law claims. 21 Oxus Gold relied upon WG & B Manufacturing Pty Ltd v Tesla Farad Pty Ltd (1999) 48 IPR 111 ( WG & B Manufacturing ). In that case, the applicant alleged that the four respondents had engaged in misleading or deceptive conduct in contravention of s 52 of the TPA, and that the remaining respondents had aided and abetted that contravention. The non-federal claims were somewhat imprecisely pleaded but were founded primarily on a breach of the duty of fidelity arising under contracts of employment, and on a breach of a commercial contract providing for the right to develop a brushless motor. The respondents in that case submitted that the statement of claim disclosed no reasonable cause of action so far as the federal claims were concerned, and that the federal claims were not made bona fide. 22 Finklestein J rejected the contention that the federal claims were not genuine, in the sense that they were colourable and only made for the purpose of fabricating jurisdiction. However, he found that the federal claims were " 'trivial or insubstantial' in the sense explained by the High Court in Fencott v Muller ". The federal claims were made only by way of bald assertion in the statement of claim, and Finklestein J did not give detailed reasons for his conclusion. However, it is clear that Finklestein J did not suggest the principles to be applied in determining that issue were other than as set out at [16] to [18] above . WG & B Manufacturing is simply an illustration that the determination of whether a federal claim is a trivial or insubstantial aspect of the controversy is a matter of impression and practical judgment. 23 There was also some debate as to whether Oxus Gold had actually put in issue whether the applicants' conduct in making the federal claims was "colourable" in the sense that they were raised in bad faith. It is not necessary to determine whether or not that issue was properly raised because, for the reason set out above, it cannot, in my view, be said that the making of the federal claims was colourable. Both of the federal claims address the loss and damage suffered and likely to be suffered by the first applicant, a public company, from the publication to the investing public of statements impugning an important asset of the first applicant. 24 Further, it does not follow from Oxus Gold's submissions, referred to at [11] to [14] above, that the applicants have failed to demonstrate a prima facie case, in the sense referred to in State of Western Australia v Vetter Trittler Pty Ltd (in liq) (Receiver and Manager Appointed) (1991) 30 FCR 102, in respect of the two claims for misleading or deceptive conduct currently made by reference to contraventions of s 52 of the TPA. 25 As to the first submission, it is unnecessary for me to determine whether the applicants are precluded by s 51AF(2)(a) from relying upon s 52 of the TPA in support of their claims. This is because the same underlying facts would be relied upon in support of any claim that may be available to the applicants under s 12DA of the ASIC Act. The applicants have said that they intend to amend to plead that they rely in the alternative on contraventions by the respondents of s 12DA of the ASIC Act. Such an amendment would not result in claims of a substantially different nature being made to those in respect of which leave to serve out of the jurisdiction was granted ( Beck v Value Capital Ltd (No 2) [1975] 1 WLR 6 at 15). 26 As to the second submission, it is said that there was no plea that the applicants relied upon the relevant representation in the notice of termination. However, the case made by the applicants is that the statements contained in the notice of termination have been made public and it is the impact of those statements on the investing public which have had, and are likely to have a deleterious effect upon the business of the first applicant. It is not necessary for the party suffering, or likely to suffer the loss and damage, also to be the party relying upon the statements ( Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526). 27 As to the third submission, there are authorities which support the proposition that the publication of a misleading statement on the Oxus Gold website which is based in the United Kingdom, and which is downloadable in Australia, is capable of comprising conduct in Australia. (See, for example, Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485; Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309). Further, the unchallenged evidence of Mr Gunzburg is that he was able to download the statement in Australia. 28 As to the fourth submission, the applicants have pleaded that the first applicant has suffered and is likely to suffer loss and damage by reason of the denigration by the respondents of the Saulyak gold deposit. Mr Gunzburg has deposed that the statements have had a deleterious effect on the perception of the company in the market with the attendant potential to impact negatively on the applicants' ability to exploit the Saulyak gold deposit. Mr Gunzburg said that the asset has gained a "damaged goods" reputation in the market place. There has been no challenge to the evidence of Mr Gunzburg on this issue. Loss and damage to the standing, or reputation of a business is compensable under s 82 and s 87 of the TPA without the need to quantify the precise loss and damage ( RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164). 30 In the case of Arab Business Consortium International Finance and Investment Co v Banque Franco-Tunisienne [1996] 1 Lloyd's Rep 485, the applicant applied for leave to serve proceedings out of the jurisdiction to enforce an arbitration award under the international convention to which the Arbitration Act 1975 (UK) gives effect. The respondent, Banque Franco-Tunisienne, applied to have the leave to serve the proceedings out of the jurisdiction set aside, on the grounds that there had been a serious non-disclosure of relevant material during the course of the ex parte application for leave to serve out of the jurisdiction. At the hearing of the ex parte application, the applicant had referred to an order of a Tunisian court giving leave to enforce the award, but had not disclosed that the order had been reversed on appeal. That obligation is to bring to the attention of the Court any matter, which, if the other party were represented, that party would wish the Court to be aware of in the context of exercising its discretion. At one end of the scale there are Anton Piller orders and Mareva injunctions where the consequences of the order may be unpredictable and irremediable and very possibly most serious for the proposed defendant: there the very fullest disclosure must be made so as to ensure as far as possible that no injustice is done to the defendant. At the other end of the scale are minor procedural applications where there may be no risk at all of prejudice, or at least none that cannot be fully made good by an order in costs. Where the application is, as in the present instance, one of a character which would not prejudice the relevant party's position...and would not cause them any loss or inconvenience that would not fully be made good by an order in costs, the duty of disclosure does not have such an extreme extent. Obviously, if a non-disclosure has been of a serious kind and deliberate, the Court would wish to ensure that any advantage gained by the non-disclosure should not be retained. Waller J went on to find that in the context of the other evidence he did not believe that the disclosure would have affected his mind, or the mind of any other judge, in relation to the granting of leave. That duty, as appears from the passage in the judgment of Mr. Justice Hobhouse as I have already quoted, applies on any ex parte application. The Judge who has to deal with an ex parte application is dependant on points which should be drawn to his attention being so drawn clearly. There should be no thought in the mind of those preparing affidavits that provided that somewhere in the exhibits or in the affidavit a point of materiality can be discerned, that is good enough. Some of the submissions of Mr. Burton, Q.C. for ABCI, seemed to me to be so suggesting. As part of the need to emphasize the duty it may be necessary to set aside orders to penalise those guilty, but in my view in this case the punishment that would in fact be inflicted on ABCI would be out of proportion to the offence. Setting aside does not follow as a matter of course. Relevant to the discretion is whether the material non-disclosure was serious or otherwise the importance or weight that should be attached to the omitted fact in the decision making process and also any hardship if the order was set aside. The approach is different if the plaintiff has acted culpably in the sense that the omission to disclose relevant matters was done deliberately to mislead the court. The most likely result in those circumstances would be that the order would be vacated. The first applicant made an initial announcement to the Australian Stock Exchange about the notice of termination on 3 July 2006 and on 11 July 2006 it made a second announcement. The TPA claim is founded on the content of the second announcement. Mr Gunzburg's affidavit exhibited the second of the Australian Stock Exchange announcements, but not the first. It is the failure by the applicants to disclose to the Court the announcement of 3 July 2006, which is impugned. 38 Counsel for the applicants submitted that the first announcement was not disclosed because it was not material to the claim that it sought to make. There was no intention to mislead the Court. 39 In my view, there is nothing to suggest that the non-disclosure was intended to mislead the Court. I accept the submission of counsel for the applicants that the first announcement was not material to the claim made. The first announcement was to the effect that the notice of termination had been served, but the parties were seeking to resolve their differences. It contained a specific reference to one of the grounds relied upon by the respondents in the notice of termination. The second announcement, on the other hand, advised that the parties were unable to resolve their differences, went on to state in greater detail the allegations made by the respondents in the notice of termination, and then sought to refute the allegations. 40 The first statement was a statement in the nature of a provisional statement, made pending discussions attempting to resolve the difficulties between the parties. The second statement was made after it became apparent the differences could not be resolved. Because of the potentially adverse consequences to the first applicant, from the failure of the parties to resolve their differences, it is understandable that the first applicant would be more expansive in the second statement, and that it would attempt to refute the allegations in that statement. I also note that the announcement of 11 July 2006 does refer in the opening paragraph to the fact that there had been a previous announcement of 3 July 2006. There is nothing in the first announcement regarding the allegations in the notice of termination, which is not in the second announcement. I am unable to conclude that the disclosure of the first announcement would have made a difference to the view to which I came, or to which any other judge would have come. 41 Oxus Gold relied upon the case of Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 in support of its submission. In that case Allsop J was, on an ex parte application, presented with a claim by the applicants in that case alleging fraud by the respondents, and an account of the underlying facts which suggested a fraudulent failure by the respondents to deliver a cargo. His Honour made world-wide orders freezing the assets of the respondents. At the contested hearing, Allsop J set aside the freezing orders on the basis that there had been inadequate disclosure of the true facts which had been known to the applicants at the time of the ex parte application. In my view, this case is distinguishable because of the difference in the nature of the non-disclosure, and the serious import of the orders obtained. The non-disclosure in that case went to the very heart of the case presented in support of the serious allegation of fraud made at the hearing of the ex parte application. Further, the non-disclosure led to the making of orders of an extensive and intrusive import. 42 Oxus Gold also criticised the applicants for not giving effect to their counsel's statement made at the ex parte hearing, that if an application was made to set aside the orders for service out of the jurisdiction, the applicants would produce to the Court a better translation of the report of the Board of Geological State Inspection, than was in evidence before the Court at the hearing of the ex parte application. However, I accept the submission of counsel for the applicants that because Oxus Gold advised in advance of the contested hearing that it did not intend to challenge at that hearing, the factual allegations made by Mr Gunzburg in his affidavit, it became unnecessary for the applicants to produce a better translation of the report. 43 Accordingly, in my view, it is not appropriate to set aside the orders for the service out of the jurisdiction, on the grounds of non-disclosure. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, "the discussion by Lord Goff in Spiliada of relevant 'connecting factors' and 'a legitimate personal or juridical advantage' provides valuable assistance". In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being "where the case may be tried 'suitably for the interests of all the parties and for the ends of justice' ". (References omitted. In this respect Gaudron J stated in Oceanic Sun ...that the selected forum should not be seen as an inappropriate forum if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties. We agree with Gaudron J that the substantive law of the forum is a very significant factor in the exercise of the court's discretion, but the court should not focus upon that factor to the exclusion of all others. In determining whether New South Wales was a "clearly inappropriate forum" the High Court engaged in a comparison of the connecting factors to Missouri and New South Wales. 50 Oxus Gold submitted that there were a number of other factors that militated in favour of concluding that this Court was clearly an inappropriate forum. Firstly, it was said that the property to be transferred under the Sale Agreement, being shares in Eurogold (Bermuda), was property that was not located within Australia. In my view, this consideration carries no weight. There was no evidence that there was any practical significance for the conduct of this litigation arising from the fact that the shares to be transferred are in a subsidiary company incorporated in Bermuda. The insignificance of this factor is further evidenced by the fact that the parties themselves chose to submit to the non-exclusive jurisdiction of the Western Australian courts, and chose the law of Western Australia to be the law governing the agreement pursuant to which the shares in question were to be transferred. 51 Next it was said that the Saulyak gold deposit, which is the underlying asset, is located in the Ukraine. For the reasons referred to in [50] above, no weight is to be given to this factor in itself. However, matters of practical significance do flow from that factor. This is because the allegations made by the respondents in the notice of termination relate directly to the exploration activities carried out in respect of the Saulyak gold deposit and the properties and features of that gold deposit. They also concern the dealings with the local Ukrainian authorities in relation to the issue of reports and licences about the Saulyak gold deposit. Accordingly, evidence will need to be given at the trial about these matters, and documents will have to be discovered, inspected and produced at the trial. Therefore, the residence of the witnesses and the location of the documents relating to these issues are relevant considerations, with which I will deal below. 52 It was also said that Oxus Gold is incorporated in the United Kingdom and conducts its business there. This is a relevant factor and some weight must be accorded to this factor, particularly in light of the fact that Oxus Gold proposes, as an alternative forum, the High Court of England and Wales. However, this factor must be weighed against the factor that the first applicant is a corporation which is incorporated and carries on business in Australia. 53 Another factor relied upon by Oxus Gold was that each of the subsidiaries, namely, the first respondent and the second applicant are incorporated in Malta and Bermuda respectively. There was no evidence, nor any suggestion, that these factors gave rise to any practical consequences to the conduct of the litigation in this forum. I give no weight to this consideration in determining whether this Court is clearly an inappropriate forum. 54 It is also submitted that the first applicant's shares are also listed on the AIM in the United Kingdom and that it conducts business in the United Kingdom. It was not suggested that this factor gives rise to any practical or juridical advantage to the respondents, which would only be available to them should the litigation be conducted in the United Kingdom. I place very little weight on this factor. 55 Mr Trew, an officer of Oxus Gold, in his affidavit of 2 October 2006, has referred to the names of a number of persons who he says may be required to give evidence. Some of those persons reside in South Africa and the majority of them reside either in the United Kingdom or in states of the former Union of Soviet Socialist Republics. Ms Allison on behalf of the applicants, has also identified persons she describes as "likely witnesses", and 14 of those are resident in Western Australia. 56 It was submitted by the applicants that the weight to be accorded to the question of the inconvenience arising from the residence of the respondents' witnesses must be tempered by the fact that the proceeding is at a very early stage and the questions in issue have not been formally defined by the pleadings. Whilst it is the case that the questions in issue have not been formally defined by the pleadings, it is plain, on the evidence, that the question of the nature and properties of the Saulyak gold deposit, dealings with the Ukrainian authorities, and progress made in exploring the Saulyak gold deposit are central to the controversy; and that there will be a need to adduce evidence at the trial going to those issues. It is very likely, therefore, that a number of witnesses at the trial will be from countries other than Australia, and that others will be from Western Australia. The consequence is that it is very likely that witnesses will be required to travel, regardless of whether the litigation is conducted in this Court or in the High Court of England and Wales. 57 It is accepted that relevant documents are located in the United Kingdom, Australia and the Ukraine. However, regardless of where the litigation is conducted, it will be necessary to transfer documents to the offices of the legal representatives of the parties at that location. 58 It is also true that there would be some inconvenience associated with the respondents having to instruct and send documents to lawyers in Australia, and also with potential witnesses of the respondents having to consult with lawyers in Australia before the trial. However, the same would be true, mutatis mutandis, in respect of the applicants conducting litigation in the High Court of England and Wales. 59 In assessing the factors referred to above, it is clear that it will be burdensome for the respondents if the litigation is to be conducted in this Court, and burdensome for the applicants if it is to be conducted in the High Court of England and Wales. However, the question that I must determine is whether it is "seriously and unfairly burdensome, prejudicial or damaging" on, or "productive of serious and unjustified trouble and harassment" to, the respondents if they were required to conduct this litigation in this Court. 60 In making that determination, I take into account the fact that Oxus Gold is a company which is incorporated and carries on business in the United Kingdom, and also the inconvenience and burden relating to witnesses, documents and instructing lawyers referred to above, which will arise if the respondents are required to litigate this controversy in this Court. However, I weigh against those factors the fact that this litigation relates to matters connected with the Sale Agreement, and the respondents agreed to submit to the non-exclusive jurisdiction of the Western Australian courts, and also that the law of Western Australia would govern the Sale Agreement. I also take into account the fact that the controversy involves claims by the applicants of contraventions by the respondents of a Commonwealth statute. 61 When these matters are weighed against the matters weighed in favour of the respondents, I am unable to conclude that this Court is a clearly inappropriate forum in which to litigate matters arising in relation to the Sale Agreement. This is because although, as I have already recognised, there are factors which make it burdensome for the respondents to litigate in Australia, it cannot be said that such burden is seriously unfair, prejudicial or damaging, or "productive of serious and unjustified trouble and harassment" in light of the fact that the same factors would make it burdensome for the applicants to litigate in the United Kingdom, and the respondents entered into an agreement, which chose the law of Western Australia as its governing law, and which specifically contemplated that in the event of a dispute about the agreement, they may become respondents to proceedings in Australia. 62 Accordingly, I decline to set aside the orders for service out of the jurisdiction, or to stay the proceedings. 63 Oxus Gold's notice of motion is dismissed. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

service out of the jurisdiction whether federal claims a trivial or insubstantial aspect of the controversy whether there is jurisdiction to hear and determine a common law claim whether there was material non-disclosure in the course of the hearing of the ex parte application whether orders giving leave to serve out of the jurisdiction should be set aside whether the court is a clearly inappropriate forum practice and procedure conflict of laws

2 The purpose of the Scheme is to effect a takeover of Hostworks by Broadcast Australia Pty Ltd (Broadcast Australia) so that Hostworks will become a wholly owned subsidiary of Broadcast Australia. It is commonly called a transfer scheme. It is more fully described in the Scheme Booklet which was issued with the notice of the Scheme meeting. The Scheme was supported by an Implementation Agreement between Hostworks and Broadcast Australia, and a Deed Poll by which Broadcast Australia committed itself to perform its obligations to pay to the members of Hostworks the price for the shares that, under the Scheme, were to be transferred to Broadcast Australia. Particular features of the Scheme are discussed in the earlier judgment at [31]-[41]. 3 Subject to two matters which I will mention below, the Scheme meeting was duly convened in accordance with the Orders made, save in respect of 26 members who were sent the Scheme booklet and proxy form on 9 January 2008 instead of 8 January 2008. Hostworks seeks a further variation of the Orders to accommodate that circumstance. 4 At the Scheme meeting on 13 February 2008, the Scheme was approved by the requisite majorities for the purpose of s 411(4)(a)(ii) of the Act. Some 96.56% of the members of Hostworks who voted and 99.06% of the shares in Hostworks which were voted were in favour of the Scheme. This is an application for approval by the Court of the scheme pursuant to s 411(4)(b) of the Act. 5 The Orders made on 21 December 2007 were varied on 15 January 2008 to permit the later dispatch by one day of the Scheme documents, including the notice convening the Scheme meeting, from 7 January to 8 January 2008 (see the earlier reasons at [48]). That variation took effect nunc pro tunc from 21 December 2007. As noted, those Orders were not complied with in respect of 26 of some 1300 members of Hostworks who were sent the Scheme booklet instead on 9 January 2008. There is no suggestion that that was other than an administrative error. The Court is therefore also asked to further vary the Orders made on 21 December 2007 by substituting 9 January 2008 for 8 January 2008. 6 I do not think anything turns on the fact that 26 Scheme booklets were sent to members on 9 January 2008. The shareholders of Hostworks are deemed by cl 13.5 of its constitution to have been received one day after they were posted, namely, either 9 January 2008 for almost all its members, or 10 January for 26 of its members. The Scheme meeting, in the absence of a Court order to the contrary, must be convened in accordance with Pt 2G.2 of the Act. Hence, s 249HA requires at least 28 days' notice of the Scheme meeting. That is also in accordance with Hostworks' constitution. There were 34 days between 10 January 2008 and the Scheme meeting on 13 February 2008, so the required notice was given. Even accepting that not all mail will be delivered the following business day (despite the deeming effect of cl 13.5 of Hostworks' constitution) there is still a leeway of six days available. 7 In those circumstances, I propose to make the order sought, further varying the Orders made on 21 December 2007, and that the further variation should operate nunc pro tunc so that the reference to 8 January 2008 should be taken to refer, and to always have referred, to 9 January 2008 in the orders made on 21 December 2007. 8 I also propose to order that the words "as at the close of business on 7 January 2008" after the word "plaintiff's members" appearing in the Orders of 21 December 2007 be varied to that effect. They should also have effect as if they were always in the Orders of 21 December 2007. They simply reflect the cut-off date by which a member needed to be registered to be entitled to the dispatch of the documents relating to the Scheme meeting within the time permitted by the Orders. I note that there are seven new members of Hostworks after 7 January 2008 who have been sent the Scheme documents relating to the Scheme meeting within two business days of them becoming members of Hostworks. 9 I turn, then, to consider whether the Scheme should be approved. 10 The principles upon which I should do so are now fairly settled. The Court is not bound to approve the Scheme simply because it has previously made orders for the convening of the Scheme meeting and the requisite majority of the members have agreed to it: see Re NRMA Ltd [2000] NSWSC 82 ; (2000) 33 ACSR 595 at 607. However, where a majority of members have approved the Scheme, the Court should be slow to conclude that the scheme is unreasonable or unfair, provided that the members have been properly informed of matters relevant to the making of their decision, as that would otherwise involve the Court substituting its commercial judgment for that of the body of members of Hostworks. The Courts are generally reluctant to make decisions contrary to the views of members expressed at such a meeting: see, for example, Re Central Pacific Minerals NL (2002) FCA 239 at [12] - [14] . The Court has the further duty of satisfying itself (where the issue arises) that the arrangement is fair and equitable between different classes of shareholders and as between shareholders and those who will also benefit from the scheme (see Re Central Pacific Minerals NL (2002) FCA 239 at [12] - [13] ) and it should ensure that all the conditions required by s 411 of the Act have been complied with, and that the majority of the members have acted in good faith and not in pursuit of some illegitimate purpose. 13 It is not necessary to spend much time on the procedural requirements of Pt 5.1 of the Act. Hostworks delivered the application and the principal affidavits to the Australian Securities and Investments Commission (ASIC) before the Orders of 21 December 2007, and then delivered the Orders of that date and the Scheme booklet which was registered with ASIC on 21 December 2007. I note that on 19 February 2008 ASIC indicated under s 411(17)(b) of the Act that it has no objection to the scheme. ASIC there stated that it reached that view because it is satisfied that its criteria in Regulatory Guides 60 and 142 have been satisfied. 14 A copy of the Scheme booklet, including the notice of the Scheme meeting and the proxy forms (all of which is annexure PJW29 to the affidavit of Peter John Wildy sworn on 14 December 2007) (the documents) were dispatched to the members of Hostworks on 8 and 9 January 2008. The Scheme meeting was then duly held on 13 February 2008 at the time and place stipulated in the Orders, and it was chaired by Mr Stephen Chapman, also as ordered. As noted, at that meeting a resolution to approve the Scheme was passed by the majority of members present (95.56 per cent) and by the majority of shares voted at the meeting (99.06 per cent). 15 In addition to the direct notification to members, a notice of hearing in relation to this application was published in the public notices of The Australian newspaper on 15 February 2008, also in accordance with the orders made on 21 December 2007. 16 I turn to address substantive considerations. 17 There is no appearance today by any person in opposition to the Scheme, and no notice of opposition has previously been given either to Hostworks or to the Court by any person or entity. Hostworks, thus, does not have the burden of satisfying s 411(17)(a) , as the two limbs of s 411(17) are alternatives: see, for example, Re Coles Group Limited (No. 2) [2007] VSC 523 at [33] and [80]. The Court may, but not must, therefore approve the Scheme. The matters the subject of s 411(17)(a) may, but need not, be taken into account by the court in an appropriate case in the exercise of that discretion: see Coles Group Limited (No 2) [2007] VSC 523 at [23] . 20 In this matter, I am satisfied that the Scheme is not proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6 of the Act. It is now commonplace that transactions which could be carried out under Chapter 6 are carried out by a scheme of arrangement under Chapter 5. As others have said, the legislation is neutral as to which choice a corporation may make: see, for example, Re Coles Group Limited (No 2) [2007] VSC 523 at [43] and [47]. 21 The effect of the ASIC Regulatory Guides 60 and 142, in the context of the ASIC's letter that it does not object to the Scheme, supports my conclusion. ASIC's criterion in those Regulatory Guides indicates that it has satisfied itself that Hostworks shareholders are not being adversely affected by the takeover proceeding by a scheme of arrangement under Chapter 5, rather than a takeover scheme under Chapter 6. The adoption of the scheme of arrangement option under Chapter 5 is driven by understandable commercial reasons which are, in material respects, similar to those considered in Re IWL Limited [2007] VSC 530 at [6] , in which a similar conclusion was reached. 22 On this aspect, finally I note that there is nothing which might suggest that Hostworks members have not received all the material information that they need for their decision, or have not had a reasonable and equal opportunity to share in the benefits provided under the Scheme. The evidence indicates that Hostworks members are not adversely affected by the takeover proceeding by a scheme of arrangement rather than a takeover under Chapter 6, and are being treated equally. 23 I am also satisfied that the majority of members have acted in good faith and not in pursuit of some illegitimate purpose. 24 The effect of the Scheme is that Hostworks will become a wholly owned subsidiary of Broadcast Australia. As noted, a scheme involving the acquisition of all of an entity's issued capital for cash consideration in order that the entity become a wholly owned subsidiary of an acquirer is a common use of the Pt 5.1 procedure. Recent examples include Re MIM Holdings Ltd (2003) 45 ACSR 554 and Re Mincom Ltd (No. 3) (2007) 25 ACLC 44. 25 The Scheme in no sense works unfairly as between Hostworks members, because there is a single class of shareholders who are treated identically. I note that Hostworks had a number of option-holders prior to the Scheme. They are not directly affected by it, and each has agreed to the cancellation of their options for payment of what is called under the Scheme the cancellation consideration. The cancellation consideration payable for the cancellation of options takes into account the strike price of options and will result in payment of consideration equivalent to the Scheme consideration to those option-holders, so they are being treated rateably with shareholders. 26 I note that the only potential additional benefits available to directors of Hostworks or other associates of Hostworks are, firstly, a bonus to Mr Gauvin, to which he will be entitled if the Scheme becomes effective - it was fully disclosed in para 9.5(e) of the Scheme booklet --- and, secondly, a retirement allowance which will be payable to Mr Peter Shore in the event that prior to December 2008 he ceases to be chairman of Hostworks at the direction of Broadcast Australia following the implementation of the Scheme - that, too, is disclosed in para 9.5(f) of the Scheme booklet. I note further that Mr Shore did not participate in the meetings of directors of Hostworks leading to the proposal of the Scheme. Neither of those special features, in the circumstances in which they arise, indicates that, as shareholders, the members of Hostworks were not being treated equally. Nor do those particular benefits tend to indicate any unfairness to Hostworks shareholders, or that the Scheme is not put forward in good faith. 27 As I noted in the earlier reasons, Hostworks has procured and made available an independent expert's report to accompany its statement to its members in the Scheme booklet, even though it was not required to do so. The independent expert KPMG concluded that the Scheme is fair and reasonable and, in the absence of an alternative offer on better terms, is in the best interests of the members of Hostworks. 28 Finally on this topic, I note that 320 members attended the Scheme meeting in person or by proxy, being 26.31% of the total number of members entitled to vote at the Scheme meeting and that 96.56% of those members who voted in person or by proxy voted in favour of the Scheme, representing 99.06% of the total shares voted. 29 Hostworks has disclosed that, following the Scheme meeting, one of its members Mr Peter Erman by email raised a concern that not all of his votes against the then proposed Scheme had been counted. Its inquiries have revealed that Mr Erman was registered to vote at the Scheme meeting in his name for 424,950 shares, and through Peter Erman Pty Ltd for 600,000 shares. Those votes were counted. He was also entitled to vote in respect of 675,050 shares held in the name of Peter George Robert Erman, and 550,000 shares held in the name of Peter George Erman. I accept that those votes were not counted. I accept that that arose because the employee of Computershare Investor Services Pty Ltd, the company appointed to manage the share register for Hostworks in relation to the Scheme meeting, and that person who was also the returning officer, did not recognise that Mr Erman was the holder of those shares because the shareholder names were slightly different. Hence, Mr Erman was not registered to vote or given a ballot paper in respect of those two additional holdings. If the additional holdings of Mr Erman excluded from the result of the poll as declared are taken into account as votes against the Scheme, the shares voted in favour of the Scheme would fall to 98.14% of the total shares voted, rather than 99.06%. 30 The Scheme has, therefore, been approved by an overwhelming majority, both in number of members and in the percentage of votes cast. In my view, for those reasons, the Court should approve the Scheme pursuant to s 411(4)(b) of the Act. 31 There is one further aspect of Hostworks' application to address. Section 411(6) empowers the Court to approve a scheme of arrangement which has been altered after shareholder approval. The discretion may be exercised where the amendment involves the smooth working of the scheme without affecting its substance. That proposed alteration to the Scheme was identified by the chairman at the Scheme meeting. A variation of a shareholder approved scheme in similar terms was made in Re Rocksoft Ltd [2006] FCA 1098 , as the proposed variation involved simply a commercial consideration which had no novelty or significance to the nature of the scheme or to the members. 34 I see no reason not to give effect to the proposed variation to the Scheme, because I think it falls into the same category. I will do so. 35 Section 411(11) of the Act contemplates that a copy of the order made by the Court under s 411(4)(b) will be annexed to every copy of the constitution of Hostworks after the order has been made. 38 Upon implementation of the Scheme (as approved by the Court), Broadcast Australia will be the sole shareholder of Hostworks. The Scheme will not have involved modification to the rights of shareholders' or of creditors' entitlements, but simply involve a change in the shareholding of Hostworks and a cancellation of the options in Hostworks on issue at the time the Scheme was proposed. This also seems, therefore, an appropriate matter in which to order, pursuant to s 411(12) that Hostworks be exempt from complying with s 411(11) of the Act. 2. 3. 4. Pursuant to s 411(4)(b) of the Act, the scheme of arrangement proposed between the plaintiff and its members as altered pursuant to para 3 and in the form of Schedule A to this order, is approved. 5. Pursuant to s 411(12) of the Act, the plaintiff be exempted from compliance with s 411(11) of the Act. 6. Liberty to apply. 7. This order be entered forthwith. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Its registered office is at 340 Findon Road, Kidman Park, SA, Australia 5025. (b) Hostworks is admitted to the official list of ASX and the Hostworks Shares are officially quoted on the financial market conducted by ASX. (c) As at the date of the Scheme Booklet, there are 163,625,550 Hostworks Shares on issue. (d) The Register contains the name and registered address of the Hostworks Shareholders. (e) BA is a proprietary company limited by shares, incorporated in Australia and registered in New South Wales. Its registered office is at Level 10, Tower A, 799 Pacific Highway, Chatswood, NSW, Australia 2067. (f) Hostworks and BA agreed, by executing the Implementation Agreement, to propose and implement the terms of, and to perform their respective obligations under, this Scheme. (g) BA has executed a Deed Poll pursuant to which BA has covenanted in favour of each Scheme Participant (being the holders of Hostworks Shares other than BA and any person holding Hostworks Shares solely on behalf of BA at the Record Date) to carry out the obligations to be performed by it under this Scheme. 1. ASIC means the Australian Securities and Investments Commission. ASX means ASX Limited ABN 98 008 624 691. ASX Listing Rules means the official listing rules, from time to time, of ASX. BA means Broadcast Australia Pty Limited, ABN 99 086 048 562. Business Day means a business day as defined in ASX Listing Rules. Cancellation Consideration has the meaning given in the Implementation Agreement. CHESS means the Clearing House Electronic Subregister System, which provides for electronic share transfer in Australia. Corporations Act means the Corporations Act 2001 (Cth). Court means the Federal Court of Australia. Court Approval Date means the date when the Court grants its approval to the Scheme under section 41l(4) of the Corporations Act . Deed Poll means the deed poll referred to in clause (g) that has been executed by BA. Directors means the directors of Hostworks at the date of the Scheme Booklet. Effective means, when used in relation to this Scheme, the coming into effect, pursuant to section 41l(10) of the Corporations Act , of the order of the Court approving the Scheme under section 411(4)(b). Effective Date means the date on which the Scheme become Effective. Excluded Share means any Hostworks Share held by any person on behalf of or for the benefit of BA or any of its Related Entities. Hostworks means Hostworks Group Limited ABN 56 008 010 820. Hostworks Option means an option to acquire a Hostworks Share issued under the Hostworks Employee Share Option Plan or otherwise (including the 5,000,000 options over Hostworks Shares issued to Peter Shore). Hostworks Shares means fully paid ordinary shares issued in the capital of Hostworks. Hostworks Shareholders means each person who is the registered holder of ordinary shares in Hostworks. Implementation Agreement means the Implementation Agreement dated 7 December 2007 between BA and Hostworks. Implementation Date means the fifth Business Day after the Record Date. Notification Date has the meaning given in the Implementation Agreement. Register means the register of Hostworks Shares, that is maintained by the Registry on behalf of Hostworks. Registry means Computershare Investor Services Pty Limited. Related Entity has the meaning given in the Implementation Agreement. Scheme means this scheme of arrangement between Hostworks and Scheme Participants subject to any alterations or conditions made or required by the Court under Section 411(6) of the Corporations Act and approved by BA and Hostworks. Scheme Booklet means the explanatory statement that is registered by ASIC under section 412(b) of the Corporations Act in relation to this Scheme. Scheme Meeting means the meeting of the Hostworks Shareholders other than BA and any person holding Hostworks Share solely on behalf of BA, convened by the Court in relation to the Scheme pursuant to section 411(1) of the Corporations Act , to consider and if thought fit approve the Scheme Resolution. It includes any adjournment of that meeting. Scheme Participant means each person who is a Hostworks Shareholder as at 5.00pm on the Record Date other than BA and any person holding Hostworks Shares solely on behalf of BA and a reference to any Scheme Participant is to any of them individually. Scheme Resolution means the resolution to approve the terms of the Scheme. Scheme Transfer means for each Scheme Participant in respect of the Hostworks Shares held by that Scheme Participant, a duly completed and executed instrument of transfer of such Hostworks Shares for the purposes of section 1071 B of the Corporations Act , which may be a master transfer of all the Hostworks Shares. Sunset Date means 31 May 2008. 2. 3. (b) The lodgement in paragraph (a) will be made on the first Business Day after the day on which the Court approves the Scheme. (c) For the avoidance of doubt, the Scheme Consideration paid to each Scheme Participant under this Scheme is the total consideration for the Scheme Participant transferring the Hostworks Shares of the Scheme Participant as at the Record Date to BA under clause 3.2(c) of this Scheme. (d) In the case of joint holders of Hostworks Shares, a cheque shall be payable and forwarded in the names of those joint holders. 4. (b) Hostworks must register registrable transmission applications or transfers of the kind referred to in clause 4(a)(ii) by, or as soon as practicable after, the Record Date. The persons shown in the Register, and the number of Hostworks Shares shown as being held by them, after registration of those transfers and transmission applications will be taken to be the Hostworks Shareholders, and the number of Hostworks Shares held by them, on the Record Date. (c) Hostworks will not accept for registration, nor recognise for any purpose, any transfer or transmission application in respect of Hostworks Shares received after the Record Date (or received prior to the Record Date not in registrable form). (d) From the Record Date and until registration of BA in respect of all Hostworks Shares, no Scheme Participant may deal with Hostworks Shares they hold, or any interest in them, in any way except as set out in this Scheme and any attempt to do so will have no effect. (e) On or before 9.00am on the Implementation Date, Hostworks must give to BA details of the names and addresses shown in the Register of all Scheme Participants and of the number of Hostworks Shares held by each of them as at the Record Date. (f) All statements of holding for Hostworks Shares will cease to have effect from the Record Date as documents of title in respect of those shares and, as from that date, each entry at that date on the Register, and prior to the Implementation Date, will cease to have effect except as evidence of entitlement to the Scheme Consideration in respect of those Hostworks Shares. 5. (b) On a date determined by BA, Hostworks will apply for termination of the official quotation on ASX of Hostworks Shares and will apply to have itself removed from the official list of ASX. 6. (b) To the extent permitted by law, all Hostworks Shares (including any rights and entitlements attaching to those shares) which are transferred to BA under this Scheme will, at the date of the transfer of them to BA, vest in BA free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and free from any restrictions on transfer of any kind not referred to in this Scheme. (c) BA will be beneficially entitled to Hostworks Shares transferred to it under this Scheme pending registration by Hostworks of the name and address of BA in the Register as the holder of the Hostworks Shares.

corporations act 2001 (cth) scheme of arrangement approval of scheme by court excess of court's discretion applications for approval of members scheme of arrangement whereby a third entity acquires all shares in applicant company (a transfer scheme) whether court satisfied that arrangement capable of being accepted whether all conditions of s 411 complied with scheme approved corporations

The process that is the subject of the patent includes a step in which a diastereoisomer is obtained after purification by crystallisation from a polar organic solvent, chosen from acetonitrile, ethyl acetate or lower aliphatic alcohol. Servier alleges that Apotex infringed the patent by, inter alia, importing, selling or supplying its perindopril product made by using the process there claimed. Apotex denies infringement. Apotex's parent company, Apotex Pharmachem Inc ('API'), uses a compound known as Intermediate B ('Intermediate B') in the manufacture of its perindopril erbumine product. Intermediate B is supplied to API by a third party supplier ('the supplier'). In issue in the proceedings is whether the synthesis of Intermediate B infringed the patent. For the purpose of the proceedings, Apotex has provided the route of synthesis for Intermediate B, which relevantly specifies that the solvent used is one which I will call 'Solvent 1'. As Solvent 1 is not one of the solvents specified in the claims of the patent, its use in the synthesis of Intermediate B is a key plank in Apotex's denial of infringement. While API is not subject to the obligation of discovery, Servier had raised with Apotex the possibility of a Sabre order ( Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557 ; (1993) 46 FCR 428). API then voluntarily provided the documents to Apotex, redacted to remove information that would identify the supplier. This provision was on the basis that the supplier's identity would be protected. Apotex produced documents provided to it by API with the name, address and contact details of the supplier redacted ('API documents'). From the correspondence between the parties, it does not seem to be in dispute that Freehills (Apotex's solicitors) have in their possession documents disclosing the identity of the supplier. Freehills has stated in correspondence that it caused the documents to be redacted in accordance with instructions that the supplier does not wish to be identified. In no document provided to Servier has the identity of the supplier been revealed. API had requested documents, relevant to the discovery categories, from the supplier. For some time no documents were received from the supplier and Servier asked Apotex for the name, address and contact details of the supplier in order to pursue an application under the Hague Convention. Apotex indicated in correspondence that it could not provide the identity of the supplier as that was the confidential information of API and API did not consent to its disclosure. Eventually, the supplier provided two documents to API, which were produced by Apotex on discovery to Servier ('supplier documents'). Both of those documents were provided on a confidential basis and on the assurance by API that the supplier's identity would be kept confidential. Any redactions on the supplier documents were made by the supplier before they were provided to API. Subsequently, in response to Servier's requests, API made further approaches to the supplier for documents. At one stage, the supplier expressed a willingness to cooperate in providing further documents but subsequently informed API that no further documents will be provided. When the matter first came before the Court, I requested Apotex to make one further request of the supplier for ten batch records for Intermediate B which the supplier had previously indicated it would review and provide. Apotex was also given the opportunity to make contact with the supplier to advise it of Servier's application to obtain its identity and to determine whether any further documentation or information would be provided in the absence of an order of the Court. To date, no further documentation or information has been produced by the supplier. The reply email, dated 21 May 2004, stated that the solvents being used for Intermediate B were what I will call Solvent 2 and Solvent 3 (which are different to Solvent 1). The reply does not mention Solvent 1. Solvent 2 and Solvent 3 appear to fall within the solvents specified in the claimed process of Servier's patent. There is no explanation for the statement in the emails that Solvent 2 and Solvent 3 (rather than Solvent 1) are used as the solvents for the preparation of Intermediate B. While, as Apotex points out, the emails were sent in 2004, there is no evidence to explain whether there has been a change in solvent since 2004, or the length of time that Solvent 2 and 3 (within the claims of the patent) may have been used. One of the sets of documents within the supplier documents provides for "deviations/remarks" concerning the process adopted by the supplier in the synthesis of Intermediate B. The document produced is a standard form and there is no entry under this heading. The supplier has declined to produce any further documentation, despite repeated requests by Apotex through API. Servier maintains its entitlement to obtain unredacted copies of documents, that is, copies of documents in which the identity of the supplier is disclosed. This, Servier says, is to enable it to consider what further action it will take to conduct enquiries of that supplier concerning the solvent actually used in the process. Apotex says that Servier is seeking an order that Apotex act in a manner contrary to its obligation of confidence to API and to the supplier. It points out that Servier's solicitors are aware that the basis upon which API and the supplier provided the documents to Apotex was that the details of the identity of the supplier be redacted. Servier's response is that it accepted the redaction and the confidentiality only on the footing that it was provided with complete documentation which, it says, it was not. Servier now accepts that it cannot obtain an order to remove redactions from the documents that had been provided to API already redacted by the supplier . However, it does press for copies of API's unredacted documents, where the redaction has been carried out by Freehills. Servier says that all they want is ' name, address and contact details ' of the supplier. Servier says that the course it will adopt after obtaining this information will depend upon the identity and location of the supplier. It may include a direct approach, a subpoena, discovery by the supplier if the supplier has a relevant presence in the jurisdiction, investigation of whether the supplier has published its process, or an application under the Hague Convention for taking evidence abroad. Servier also says, without elaborating, that it does not seek to ask questions of the supplier that are not relevant to these proceedings. All information relating to the supplier has been received by Apotex through API. API takes the view that the identity of its suppliers is the confidential information of API. API has maintained the confidentiality of that information and has not consented to its disclosure to Servier. The supplier has given instructions that it does not wish to be identified in these proceedings. The supplier expressed a willingness to co-operate in giving documents sought on the basis that its identity would be kept confidential. The supplier's documents were provided on the basis that they were only for use in the proceedings and that its identity would not be disclosed in the proceedings. Where the supplier provided the documents to the API, the supplier had redacted those documents before supplying them to API. Apotex's position is that it is unable to provide Servier with the identity of the supplier as it is the confidential information of API and API does not consent to its disclosure. The supplier has provided some documentation but has declined to respond to a further broad request for documents as sought by Servier and requested by Apotex/API. From the evidence, neither Apotex nor API has the ability to direct the supplier to provide further information or documentation. Apotex points out that, while Servier says that having the name of the supplier will permit it to consider whether there is an alternative course of action to obtain information for the purposes of giving evidence about the process, Servier has not provided any information as to: The nature of the evidence it will seek from the supplier if it pursues an application for taking evidence under the Hague Convention. Why such evidence is relevant to the proceedings. The likely timing implications to the present proceedings of any action that Servier might take. Why the proceedings should be further delayed to enable Servier to conduct these further enquiries. Her Honour accepted that the respondents wished to protect the privacy of the external editors in the belief that they would object to the disclosure of their personal details to the applicant without their prior knowledge and consent. That practice is based on a positive right to withhold from inspection that part of the document in respect of which there is, for example, a valid claim for privilege. Justice Branson said that there is no such positive right in respect of portions of documents sought to be withheld from inspection on the grounds of confidentiality or irrelevance. Observing at [21] that the Court is in a position to prevent the inappropriate issue of, for example, subpoenas, her Honour concluded that the applicant was entitled to see complete, unmasked copies of discovered documents. Here, confidentiality of the identity of the supplier is asserted. There is no evidence filed by the supplier or by API as to the reasons why the supplier is concerned to maintain the confidentiality of its identity or why API regards the supplier's identity as confidential. The only evidence is that Apotex and API undertook to keep the identity confidential based upon instructions given to those parties by the supplier and that, on that basis, the supplier provided documents to API and, through API, to Apotex. Servier's position is that at no time did it accept that it would abide by the asserted confidentiality regime if it took the view that the documentation provided concerning the process of the patent was incomplete. It was only after provision of the documents that Servier noted what it characterised as inconsistencies concerning the solvent used in the process. The documents produced on discovery suggest that, at least at one stage, the solvents used in the preparation of Intermediate B came within the claimed process and that the solvent claimed to be presently used in that process was not used at the time. It is such an inconsistency, between these documents and the documents specifying the use of Solvent 1, that Servier says it wishes to pursue. This presents for Servier a line of inquiry as to whether Solvent 1 is presently used and if there has been a change in solvent since 2004. Apotex launched its product in December 2006. Apotex submits that the inconsistencies alleged by Servier are ' a thin reed ' on which to embark upon a protracted attempt to obtain further evidence on infringement. That may be so, but it is not apparent at this time whether any delay would result from providing the identity of the supplier. Apotex also submits that the application is premature in the absence of any evidence of infringement by Servier. It submits that there is no reason why Servier should not first file its evidence on infringement with the opportunity, if appropriate, to file supplementary evidence arising from any further investigations. I understand that Servier served evidence on infringement on 9 September 2009. Servier has the right to inspect API's documents with the redactions of the information concerning the identity of the supplier removed. I cannot order Apotex to remove redactions from documents that came into Apotex's or API's possession already redacted. It remains to be seen what, if any, application Servier makes and whether the weight of any evidence that Servier wishes to pursue is outweighed by the delay and inconvenience caused in the proceedings and to other parties. Servier has agreed that it is sufficient for Apotex to provide the information identifying the supplier that it seeks from the redacted documents, rather than unredacted versions of the documents. Apotex may, in the alternative to removing the redactions, provide the information that Servier seeks from the unredacted documents: the name, address and contact details of the supplier. In order to minimise concerns as to the use that may be made of the identity of the supplier, Ms Sylvie Jaguelin of Servier has agreed to provide an undertaking of confidentiality as agreed between the parties in addition to the confidentiality regime in place as agreed by the parties. The orders are those proposed by Servier on 12 August 2009, with the undertaking annexed to Servier's email of 25 August 2009.

discovered documents redacted to keep third party identity confidential discovered documents provided voluntarily by overseas third party on basis of identity confidentiality access to unredacted documents to obtain identity of third party practice and procedure

The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the first appellant. 2 The Tribunal, differently constituted, had previously affirmed a delegate's decision on 23 December 2003 and an application for judicial review of the Tribunal's earlier decision was dismissed by Federal Magistrate Smith on 30 March 2005. The appellants appealed that decision to the Federal Court and Sackville J made orders by consent on 9 June 2005 to remit the application to the Tribunal. The matter before this Court is whether the Federal Magistrate was right in dismissing the appellants' application for judicial review of the second Tribunal's decision. 3 The appellants are a married couple and their two children. They are citizens of India. Only the first appellant has made claims under the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention). 4 Before the Tribunal the first appellant claimed to have a well-founded fear of persecution because of his political opinion. The first appellant claimed to have been an active member of the Akali Dal (Mann) Party and to have been a branch level president. His claims also involved threats by the Congress Party including being detained, being tortured and having false charges laid against him. 5 The Tribunal considered the first appellant's claims but could not find any supporting evidence to suggest the Congress Party or the police harmed Akali Dal (Mann) members. However, the Tribunal's decision was based on a finding that the first appellant was not a witness of truth as there were inconsistencies in the first appellant's evidence, including inconsistencies with evidence in the protection visa application. The Tribunal sent a letter pursuant to s 424A(1) of the Migration Act 1958 (Cth) (the Act) setting out the inconsistencies. The first appellant did not respond. The Tribunal placed no weight on the letters and medical report submitted by the first appellant because it found the evidence was implausible. Consequently, the Tribunal found the first appellant was not a member of the Akali Dal or that he had political opinions imputed against him and therefore did not suffer Convention related harm. The Tribunal also stated that the Convention looked to the future and considered the reasonable willingness of the Indian authorities to take action against criminal acts. 6 The appellants sought judicial review of the Tribunal's decision before the Federal Magistrates Court on grounds that there was jurisdictional error in the Tribunal's decision and provided three bases for their claims. 7 The appellants claimed that there was an 'over reliance' on the factual findings of the previous Tribunal and thus the second Tribunal failed to perform its duty under ss 414 and 415 of the Act. The Federal Magistrate found that although the Tribunal did set out certain evidence from the earlier Tribunal, the second Tribunal's findings and reasons were concluded from an independent process and consideration of the evidence. 8 The appellants claimed the Tribunal misconceived the finding regarding harassment of Akali Dal (Mann) members and referred to the Tribunal's inconsistent use of information from the first appellant's country or origin. In particular they contended the finding that there was no independent evidence to suggest members of the Akali Dal party were harmed by the authorities was inconsistent with a finding that there were complaints received by the Director General of Police in Punjab. The Federal Magistrate considered, in view of the evidence that the Sikh Militant Movement was no longer active, that implicit in the Tribunal's finding was that the victims of the complaints were not members of the Akali Dal. The Federal Magistrate held that whether or not the factual conclusion was correct was not a matter for judicial review. 9 In relation to the appellants' claim that the Tribunal failed to assess the first appellant's claim of being a member of the Akali Dal, the Federal Magistrate found the Tribunal had considered it because the Tribunal did not accept the first appellant was a witness of truth and thus not a member of Akali Dal. There was no obligation on the Tribunal to explore membership of a party of which the Tribunal was not satisfied the first appellant was a member. The appellants' counsel submitted in support of this ground that s 65 of the Act only applied to the delegate and that it was s 414 of the Act that applied to the Tribunal. The Federal Magistrate noted that s 415 of the Act brought s 65 into consideration when the Tribunal exercises its power of review under s 414 of the Act. 10 Furthermore there was evidence for the Tribunal to make a finding of fact as to the first appellant's credibility. The Federal Magistrate found no jurisdictional error and dismissed the application. 11 The notice of appeal raised two grounds which re-raise the issues before the Federal Magistrate. Firstly, that the Federal Magistrate failed to deal properly with the Tribunal's non-compliance with s 414 of the Act by its overt reliance on the factual findings of the previous Tribunal and failure to assess the appellants' real claims. Secondly, the Federal Magistrate failed to consider whether the Tribunal made a jurisdictional error by its failure to assess the first appellant's claims in a 'constructive manner' regarding his membership of the Akali Dal (Mann) Party. 12 The nub of the appellants' submissions on each ground is that by repeating the findings of the first Tribunal at a portion of its reasons, the second Tribunal was prejudiced into finding the first appellant was not credible and therefore it did not properly consider the issue of the first appellant's claimed membership of the Akali Dal (Mann) Party. That is, that the second Tribunal was influenced by that adoption of a portion of the reasons of the first Tribunal into failing to consider the merits of the first appellant's claims as it is required to do by the Act. 13 In support of this submission the appellants relied upon the dicta of the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 20 to the effect that a failure by a tribunal to deal with a claim raised by the evidence, which would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review and may amount to a jurisdictional error. Indeed the Act, and in particular s 420 , requires that the Tribunal must act in accordance with the merits of the case. As the Full Court explained in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 the nature of the Tribunal's task in reviewing a decision requires a consideration of all available evidence. In performing that task, the Tribunal cannot, in principle, be constrained by what it had decided in earlier cases. It appears in 14 paragraphs of the reasons of the second Tribunal. These paragraphs are explicative of, firstly, the claims made by the first appellant and, secondly, what occurred at the hearing of the first Tribunal in terms of issues raised by the Tribunal and put to the first appellant. The paragraphs do not state the findings of the first Tribunal. 15 It is apparent that the paragraphs are utilised for the purpose of explaining the development of the application. They are not on the face of the reasons the source of any findings. They have not had any constraining effect upon the second Tribunal in their terms. There is nothing in the reasons of the second Tribunal to establish that over reliance has been placed upon them. 16 However, the appellants contend that even if that is the case, the very fact that those paragraphs show that the first Tribunal put issues to the first appellant and stated they were linked with his credibility, should be seen as having been enough to prejudice the mind of the member of the second Tribunal and to have set him off on consideration of the first appellant's credibility. In making this submission the appellants expressly abjure any allegation of bias on the part of the Tribunal members. 17 There is no authority either statutory or at common law, requiring a second or subsequent tribunal to be isolated from the history of an application; that is, not to have evidence of prior hearings, appeals and references for rehearing. To the contrary, references for rehearing may identify the source of errors in the reasoning of the previous tribunal and so require reference by the second or subsequent tribunal to that reasoning. 18 Furthermore, the manner in which the reasons of the second Tribunal are expressed on the issue of credibility expressly disclose the foundations of the adverse credibility finding as lying in issues arising from the evidence. Six reasons are listed though arguably seven are given. In those circumstances there is absolutely no basis upon which to infer that prejudice arising from the references to what occurred before the prior Tribunal where in any way a source of the focus by the second Tribunal upon the first appellant's credibility. The inconsistencies arising in the evidence led the second Tribunal naturally to the issues of his credibility. It did not fail to deal, and did in fact comprehensively deal with the issue of the first appellant's credibility. 19 Having considered these contentions I am therefore in entire agreement with the reasoning of the Federal Magistrate that the ground does not give rise to any jurisdictional error. 20 In relation to the second ground of appeal, the appellants contend that the error of the Tribunal was that it relied upon irrelevant material ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179), being the paragraphs copied from the reasons of the first Tribunal. I have already said that the material was not irrelevant; it was a relevant part of the history of the appellants' application. 21 Nevertheless, the appellants put the same matter another way by contending that the first appellant's legitimate expectations based on a statute cannot be excluded except by plain words of necessary intendment --- Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ). The legitimate expectation relied upon is that in making the claim under the Convention the first appellant was entitled to expect that he would be given the benefit of the doubt in deciding the issues in his application: Handbook on Procedures and Criteria for Determining the Status of Refugees [196] and [203] (the Handbook). 22 The Handbook and Convention are both not statutes of the Commonwealth Government and cannot of themselves give rise to any expectations. That was a finding within the province of the Tribunal. It was entitled to reach that conclusion. There is nothing in what the appellants now submit that would make out that the Tribunal in taking that view was in error of law. 24 It follows that the appeal must be dismissed.

appeal whether tribunal in error of law in manner in which it utilised reasoning of previous tribunal whether finding of lack of credibility of appellant's assertion of membership of a certain political party based on general finding of lack of credibility was in error of law migration

2 On 20 September 2005, the appellant's application for a protection visa was refused by a delegate of the first respondent. On 17 October 2005 the appellant applied to the Tribunal for a review of that decision. In lodging an application for a protection visa on 16 May 2005 the appellant asserted, amongst other claims, that he was subjected to political persecution in Sri Lanka, particularly from members of the Liberation Tamil Tigers of Eelam (the LTTE). 4 Before the Tribunal, the appellant claimed that he had been repeatedly harassed and threatened by members of the LTTE following a belief that he had supported a breakaway faction and passed on information about LTTE activities. Further, the appellant claimed that his business partner in Sri Lanka was killed by members of the LTTE because of his involvement with this particular faction. Following the receipt of threatening phone calls warning him to close his business, the appellant claims that his business was repeatedly attacked and he was the victim of an attempted kidnapping. The Tribunal held that it could not be satisfied that the appellant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (the Convention) and concluded that if the appellant were to return to Sri Lanka in the foreseeable future, there would be no chance that he would suffer any serious harm that could be regarded as persecution. At the hearing, the appellant presented the Court with a document purporting to be a business registration for a business located in Sri Lanka bearing the name of the appellant. I do not believe there is power in this Court to receive evidence in the manner that the Applicant seeks. What the Court is concerned with is the presence or absence of jurisdictional error such as to give rise to prerogative relief in respect of the proceedings before the Tribunal. These documents were not before the Tribunal and the Tribunal's failure to consider them self evidently gives rise to no error on its part. Having said that, a fair reading of the Tribunal's decision suggests that the absence of the certificate of the business conducted with Subramaniam by the Applicant played a very significant part in the Tribunal's process of reasoning. Similarly, the presence of the death certificate had it been available before the Tribunal might well have caused the Tribunal to approach the existence of Subramaniam in a different way. While one is necessarily dealing with a hypothesis, one might reasonably infer that had these documents been available a different outcome would have been very possible. While for the reasons earlier expressed there is nothing the Court can do to assist the Applicant arising out of these documents in terms of overturning the Tribunal's decision, these matters may very well be of assistance to the Applicant should he seek to make any application pursuant to s.417 of the Act to the Minister. However, he failed to remit the matter to the Tribunal for not allowing sufficient time to produce the documents and thereby made a jurisdictional error. 8 It is apparent that the real purpose of the fresh evidence sought to be tendered by the appellant before his Honour was to contradict the factual finding made by the Tribunal on the evidence of the Batticaloa business and the death of his business associate and the Tribunal's rejection of the appellant's claims in respect of those matters. It is not open for an appellant to ask the Court to admit new evidence for the purpose of inviting the Court to disagree with a factual conclusion reached by the Tribunal. Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 380 determined the question of '... whether, and to what extent, an appellant for review pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) can adduce evidence which was not before the tribunal at the time of its decision'. At 381 Spender J observed that appeals to the Court from the Administrative Appeals Tribunal '... are only on questions of law'. His Honour further held at 382 that the Court had no power to receive the fresh evidence: see also at 385. Marshall J in Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 at 254 approved Servos 56 FCR 377 in a migration law framework. 9 There was, therefore, no error of law in his Honour's approach to this issue. However, they were not grounds that were argued before the Federal Magistrate. This means that the appellant must demonstrate that it is expedient and in the interests of justice that these new grounds should be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. It is appropriate to consider the proposed new grounds to consider whether they have prospects of success on appeal. For reasons which follow, I have concluded that the new grounds have little prospect of success on appeal. 11 In addition, the appellant has not sought to explain why the new grounds were not raised in the Court below. Further, the law in respect of the new grounds was settled and not in a confused or fluid state at the time the application was heard by the learned Federal Magistrate on 9 October 2006. 12 Weighing these matters, I concluded that it was not expedient and in the interests of justice to grant leave for these grounds. 13 In addition, I note that the relief sought in the notice of appeal, in addition to writs of certiorari and mandamus, include a writ of prohibition. In relation to the application for prohibition directed to the first respondent, such a claim is inappropriate in the present case and there is no basis for its grant: see Re Rudduck; Ex parte Reyes (2000) 75 ALJR 465 at [23] per McHugh J. 15 In the appellant's protection visa application, he stated that he was a refugee for his political beliefs and his membership of a particular social group which was being persecuted by the LTTE. The delegate of the first respondent found that the appellant had not identified what his particular social group might be. Having considered the appellant's claims against the Convention grounds of political opinion and race, the delegate did not consider that the appellant attracted persecution through membership of a particular social group. 16 The Tribunal summarised the appellant's claims made in his application for protection. During the hearing before the Tribunal, the appellant indicated that apart from his fear of the LTTE, he did not have any other reasons to fear a return to Sri Lanka. 17 The Tribunal is not limited to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim that is 'not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal': NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] . At [59] the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: '[t]he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it': at [61]. 18 It is submitted that the claim to persecution for membership of a particular social group did not arise from the material before the Tribunal and was not raised in response to direct questioning by the Tribunal during the course of the hearing. 19 A claim made to the first respondent and referred to in the delegate's decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the delegate's decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, the Tribunal is entitled to take the view that the appellant did not make that claim or a case based on that claim: SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 per Bennett J. 20 The Tribunal gave the appellant the opportunity to present his claims. Given the appellant's statement at AB 184.5, the Tribunal was entitled to consider that apart from the appellant's claims relating to the suspicions of the LTTE that he was involved in the Karuna faction, the appellant had not suffered any other problems in the past in Sri Lanka and that the appellant had not suffered any serious harm in the past in Sri Lanka for any Convention related reason. 21 Even if the Tribunal was obliged to consider the matter of membership of a particular social group, the Tribunal had already rejected the appellant's claims on the basis of imputed political opinion such that even if the Tribunal considered the claims on the ground of a particular social group, the outcome would have been the same. As such, even if there technically is error, relief should still be withheld on discretionary grounds because it would be futile to remit the matter to the decision-maker in light of the Tribunal's findings: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [104] ; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 and S115/00A v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 561 at [26] per Finn J. 22 Accordingly, there is no likely strength in this proposed ground. He asserts the Tribunal only gave two days to provide that documentation and that was not a sufficient time for him to attempt to obtain it from Sri Lanka. The adviser was told that the Tribunal would not finalise its decision before Friday, 20 January 2006 to allow him time to forward such brief submission. At the time of making this decision no such submission had been received by the Tribunal. 25 Furthermore, the Tribunal's decision was made subsequent to the insertion of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) on 4 July 2002. As such, s 422B of the Migration Act 1958 (Cth) (the Act) provides for Div 4 of Pt 7 of the Act to be 'an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with': Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61 ; (2006) 151 FCR 214; SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62. Any argument that there was a breach of procedural fairness in failing to give the appellant the opportunity to provide further documents before handing down its reasons for decision cannot be made out. 26 Further, the Tribunal was not under any obligation to seek additional information that could remedy any deficiency in the evidence presented by the applicant: Turner v Minister for Immigration and Ethnic Affairs (1981) 55 FLR 180. 27 Again, there is no strength in the proposed ground of appeal. The non-compliance is said to have been that the business registration and the death certificate of the business associate were vital to the appellant's case and the Tribunal failed to put information that was adverse to the appellant for comment in writing and such information was a reason or part of a reason for the decision to obtain the documents from his country of origin. 29 According to s 424A , the Tribunal must give the appellant particulars of information that would be the reason, or part of the reason, for affirming the decision under review. It must also explain its relevance and invite the appellant to comment upon it. This section does not, however, apply to information that is not specifically about the appellant, that the appellant gave for the purpose of the application or that is non-disclosable: s 424A(3) ; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 and Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27. 30 The authorities are clear that the definition of 'information' in s 424A does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [54] ; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at [95] ; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] nor of defects in the appellant's case per SZEEU [2006] FCAFC 2 ; 150 FCR 214 at [206] and [223]. 31 The Tribunal merely dealt with the material provided by the appellant and made an assessment and findings on it. As such, the Tribunal made its findings based on an assessment of the appellant's material given to the Tribunal for the purposes of review and there was no obligation on the Tribunal to issue a notice under s 424A to request comments in relation to its concerns about gaps in the evidence of the appellant. 32 Due to the operation of s 422B noted above, any argument that there was a breach of procedural fairness in failing to give the appellant the opportunity to comment on the material on which the examination by the Tribunal is made cannot be made out. 33 Further s 424A(1) does not operate as the appellant would have it, that is, it does not oblige the Tribunal to afford the appellant an opportunity to provide further time to obtain additional evidence regarding letters from Sri Lanka, the business registration or his business associate's death certificate. 34 The evidence of the individual case had to be supplied by the appellant himself in as much detail as is necessary to enable the Tribunal to make findings of fact. The Tribunal is not required to make the appellant's case for him: see Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Abebe v The Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. It is for the appellant to present evidence to meet the visa criteria, particularly in circumstances where he was on notice from the delegate's decision of the first respondent that he lacked evidence to substantiate his claims, which were found to be vague and lacking detail. The Tribunal was entitled to decide the application on what the appellant chose to place before it. 35 It should be noted that during the course of the hearing, the Tribunal discussed with the appellant issues in relation to a copy of the business registration certificate for the Batticaloa business, the Sri Lankan letters and his business associate's death certificate. The letters and the oral evidence given by the appellant during the hearing fall within the exception contained in s 424A(3)(b) and no obligation arises under s 424A(1). 36 Accordingly, this third of the proposed grounds of appeal also lacks strength. Further, that the first ground had not been made out. Accordingly, I made orders refusing such leave and dismissed the appeal. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

appeal refusal by tribunal of application for protection visa fresh evidence of business tendered before federal magistrate but not admitted federal magistrate not in error in refusing evidence directed to contravening a question of fact before the tribunal leave not appropriate to argue new grounds alleged to go to jurisdictional error such grounds having little prospect of success in any event no failure by tribunal to consider membership of a particular social group of businessmen when particularity of group not identified to tribunal no arguable denial of natural justice when need to obtain documentation from sri lanka not identified to tribunal no misapplication of s 424a(1) migration

She arrived in Australia on 5 March 1999. On 25 March 1999 she lodged an application for Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs ('the Department'). On 27 September 1999 a delegate of the first respondent ('the Minister') refused to grant a protection visa. 3 On 28 October 1999 the appellant applied to the Tribunal for a review of the delegate's decision. The reasons which she gave in the application for review were that she did not agree with the delegate's decision because the Chinese were persecuted in Indonesia, were the victims of racism there and many had been murdered in that country. She also made some assertions about the then President of Indonesia and sought 'empathy'. Any documents you send that are not in English must be translated into English by an accredited interpreter or recognised translation authority. You should not send any documents or written arguments which you have already given to the Department about your protection visa (refugee status) application . However, where in a case like the present, the applicant for review did not provide the material setting out his or her case to the delegate, the question which arises is whether, when on review, the Tribunal can use material in the file without giving the particulars required by s 424A(1) and inviting the applicant's comments. 6 When the appeal was called on for hearing the appellant appeared with an interpreter. She was not able to articulate any reason why the appeal should be allowed other than to say that the Tribunal had asked her for information but she did not have access to it because it was in Indonesia. It appeared to me that she found the proceedings bewildering, despite my attempts to explain to her that it was her opportunity to tell me why the Tribunal was wrong. Counsel for the Minister, very properly in accordance with her duty to the Court, drew attention to matters which might be raised in favour of the appellant even though she was unable herself to raise them. 7 The appellant had been involved in a class proceeding connected to the proceedings in Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 76 ALJR 966 before Gaudron J, which was later remitted to this Court and decided by Allsop J. Counsel for the Minister informed the Court that in the course of the proceedings before Gaudron J, her Honour made an order to the effect that none of the applicants within the class would be affected by any res judicata , issue estoppel or other matter in respect of other applications which they might bring. After Allsop J dismissed the class proceedings so far as they affected the appellant, she filed an application for review in the Federal Magistrates Court on 1 April 2005. 8 By an amended application for review in that court filed on 27 June 2005 the applicant raised claims of jurisdictional error asserting that the Tribunal had failed properly to review her original claim to be a refugee and had failed to disclose to her a document called 'Final Report of Enquiry into Riots of 13-15 May 1998' which had been prepared in Indonesia and released on about 3 November 1998. The particulars for one ground relied on an error of fact which the Tribunal was said to have made in stating that the appellant had not, when in fact she had, made a claim in her original application for her visa that her house had been burned down. 9 The trial judge dismissed the application. He held that there was no error established before him in respect of the grounds of review advanced in the amended application. 10 Moreover, his Honour asked Ms Wong, who had also appeared before him as counsel for the Minister, to make submissions on a possible contravention of the procedure laid down in s 424A in light of the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. His Honour adopted as correct Ms Wong's submissions that there had been no contravention of s 424A because sufficient independent bases for the Tribunal's decision appeared in its reasons ([2005] FMCA 1519 [17]). The appellant gave oral evidence to the Tribunal on 17 February 2000. After summarizing the appellant's claims in her original visa application and pointing to the scanty nature of the material there advanced, the Tribunal set out in its reasons under the heading 'Findings and Reasons' that which s 430 of the Act obliges it to do. It noted that difficulty of eliciting personal information from the applicant at hearing --- information which was germane to her claims --- and the dearth of information supplied in the original forms. The departmental forms make it quite clear that all questions must be answered. It is less certain in relation to the loss of the café: it is possible that the café could have been damaged by fire which started accidentally, or that it was damaged when other buildings close by were burning. However, given the lack of any media report on the incident and given the rejection of the applicant's claim that her house was subsequently burned , the Tribunal is satisfied that if the café was burned, it was not part of a systematic pattern of harm directed at the applicant because she was Chinese. If it was not burned, again there is no harm directed at the applicant for a Convention reason (or any other). As I have noted above, the Minister had drawn to his Honour's attention the fact that the Tribunal had made what was said to be an error of fact in asserting that the appellant had made no mention of the loss of her house in her first written claim, namely her visa application. 13 At no time did the Tribunal give the appellant any particulars under s 424A. The Tribunal had before it, and had regard to, the information which the applicant had provided in her original visa application and the other material in the departmental file, including that which the delegate had elicited from her. None of the information of the kind just mentioned fell within the meaning of the exception in s 424A(3)(b): SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [5] - [9] , [154], [184] applying Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 at 33-34 [17] . The Minister relied on a line of authority in the Court, in particular the decision of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33]. Moreover, the Minister submitted that to the extent that the Tribunal's reasons identified omissions in the claims made by the appellant in support of her application for a visa it was the omissions and nothing more which constituted the reason why, or the integral part of the reasoning why, the Tribunal came to reject the appellant's claim. The Minister submitted that the Tribunal had a duty to consider all the material before it for the purposes of identifying what claim or claims an applicant for review had made in support of the claim for a protection visa, relying on the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 (see e.g. at 393-394 [23]-[24] and [26]). For that purpose it was said that the Tribunal was entitled to have regard to all of the material before it. NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37] , Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [31] ; and see too Parisienne Basket Shoes Pty Limited v White [1938] HCA 7 ; (1938) 59 CLR 369 at 389-394 per Dixon J, with whom Evatt and McTiernan JJ agreed. Indeed, the Tribunal misconstrued that claim, making the factual error to which I have adverted. The existence of that factual error can be relevant in assessing whether there has been a jurisdictional error in respect of s 424A. The error also has another consequence as appears later in these reasons. 18 The importance of the factual error, here, is that it demonstrates that the Tribunal regarded, as a part of its reason for its decision what it thought, erroneously, was information both in and not in the original application. It follows that the information which the Tribunal actually considered to be a part of the reason for affirming the decision that was under review, within the meaning of s 424A(1)(a) , included what the appellant had put in her original claim for a visa. The relevance of that information to the review was both what the claim contained, and what it omitted, which the Tribunal relied on in coming to its ultimate conclusion that it was not satisfied that the applicant's claim to a visa had been established. 19 I am of opinion that it is essential to have regard to the statutory obligation in s 430 of the Act for the Tribunal to make and record findings of fact and to give reasons. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material ( Repatriation Commission O'Brien [1985] HCA 10 ; (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane; at 353, per Fisher J; cf Fleming v The Queen [1998] HCA 68 ; (1998) 197 CLR 250 at 262-263 [28] - [29] ). ... The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration ( Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 . When s 424A refers to 'the reason or part of the reason' it does not divide the reasoning process into what is said to be 'integral' from what the Tribunal is required to express as its reasons in the language of s 430(1). In VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 478 [33] Finn and Stone JJ discussed the need to isolate what their Honours termed to be 'the integral parts of the reasons for the tribunal's decision'. Their Honours said that task, necessarily, was an interpretive one. 21 But as Allsop J pointed out in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [213] - [215] (Weinberg J agreeing at [2006] FCAFC 2 [155]) that approach is inconsistent with the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I agree with Weinberg and Allsop JJ. The decision of the majority of the High Court in SAAP v Minister [2005] HCA 24 ; (2005) 215 ALR 162, of course, was decided after Finn and Stone JJ's judgment was given. Hayne J, with whom Kirby J expressly agreed on this point (215 ALR at 203 [173]-[174]) said that where the Act prescribes steps that the Tribunal must take in conducting its review and those steps were directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, any failure to comply with the requirements of s 424A rendered the decision invalid. McHugh J was equally emphatic (215 ALR at 184 [83]). 22 The task of the Tribunal is to set out what it regarded as its material reasoning as the passage cited above from Yusuf demonstrates. In the present case, this distinction may not matter because the Tribunal used the language 'in light of all the above information', in coming to the conclusion that the appellant had been untruthful in relation to the burning of her house, having identified , inter alia , the initial application that the appellant had made for her visa as part of that information. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations, the Tribunal said that it had '...considered the evidence as a whole'. 23 Indeed, it would be a work of supererogation to suggest that the Tribunal did not have regard to that original application in coming to its assessment of untruthfulness. For it was what was omitted from that information, as the Tribunal incorrectly perceived, which was part of the critical reasoning that it adopted. 24 In a practical sense, in the present case, one only has to think that if the Tribunal had told the appellant of its erroneous understanding that her original application was relevant for the review because there was no assertion of harm, she would have been able to point out that that was a complete misreading and that she had claimed that her house had been burnt. It is pointless to speculate as to what might have happened thereafter, for the imperative requirements of the Act were not observed and the consequence is that the procedural fairness which the Act mandated be accorded to the appellant was denied her. For that reason I am of opinion that there was a jurisdictional error vitiating the Tribunal's decision. 25 Moreover, there is a number of judgments in the Court in which conflicting views have been expressed as to whether the general proposition in VAF v Minister (2004) 206 ALR 471 at 447 lays down a rule of general application that identified gaps, defects or lack of detail or specificity in evidence or conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc. can never amount to information. In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 at [21] , Allsop J pointed out there may be a distinction, sometimes fine, but nevertheless important, between information which may be knowledge acquired by the Tribunal and the subjective appraisal or thought processes of it. That is the relevant information. It is consistent both with commonsense and the provision of the procedural fairness to which the section is directed. 27 In NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 Jacobson J considered the position where an applicant for review had been asked by the Tribunal when giving oral evidence as to whether the material in that applicant's original visa application was true and correct. He held that the answer and the matter to which it referred was not information given by that applicant within the meaning of the exception in s 424A(3)(b) (at [39]-[40]). I agree with his analyis for the reasons his Honour gave. 28 Where the Tribunal seeks to use the way in which an applicant for review formulated his or her claim originally as part of the reason for rejecting the claim, whether by reason of omissions or not, I am of opinion that in the natural and ordinary meaning of the language of the section, the original application or grounds stated by the applicant for review cannot be other than a part of the reason for rejecting the claim when that rejection is expressed in the language used in the Tribunal's reasons in the present case. 29 Accordingly, I am of opinion that there has been a jurisdictional error established in the reasons of the Tribunal in that it failed to give the appellant particulars in accordance with or otherwise comply with s 424A(1) in coming to the conclusion that the appellant had not suffered harm, inter alia , because she had been untruthful regarding the destruction of her house. That conclusion was based, at least in part, on the Tribunal taking into account the information which the appellant originally put before the delegate in the visa application. The Tribunal thus identified a wrong issue and committed a jurisdictional error ( Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179). It is when the Tribunal seeks to use information which it considers would be the reason or part of the reason for affirming the decision that the requirements of s 424A(1) are engaged. 31 By s 424(1) of the Act the Tribunal was authorized to get the information in the material given to the Registrar by the Secretary of the Minister's department pursuant to s 418. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. Two consequences followed: first, s 424(1) made the information in the file relevant and, secondly, s 424A(1)(a) applied to any of that information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. 33 Nothing in s 424(1) permitted the Tribunal to ignore or use information in the file, as here, by wrongly asserting that the appellant's original claim did not refer to the loss of her house. The emphasised passages above taken from the Tribunal's reasons, show that the Tribunal regarded the contents of the original claim as relevant and it ignored or overlooked part of those contents; namely the claim that the house had been lost. 34 The Tribunal in so acting did not 'have regard to that information' in contravention of its obligation under s 424(1) to do so. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. This is because either the Tribunal ignored or overlooked the content of the appellant's original claim, thus ignoring relevant material, or it relied on irrelevant material, namely the incorrect assertion that the appellant had not included the claim about her house in her original claim. This error was material in the Tribunal's conclusion that it had 'no doubt that the [appellant] was untruthful regarding the destruction of her house'. 37 Of course, the Tribunal is entitled to make erroneous findings of fact and would commit no jurisdictional error by doing so. In Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394 [24] - [25] , Gummow and Callinan JJ held that a failure to respond to a substantial, clearly articulated argument relying upon established facts not only amounted to a failure at common law to accord natural justice but also was a constructive failure to exercise jurisdiction. The former category or error was shielded from judicial review by s 476(2)(a) of the Act but the latter attracted jurisdiction pursuant to s 75(v) of the Constitution . Of course, the grant of relief under s 75(v) is discretionary (see eg 197 ALR at 395 [33]). 38 The Tribunal did respond to some claim as to the loss of the appellant's house but misconceived what she had asserted. The function of the Tribunal was to review, pursuant to s 414(2) of the Act, the decision of the Minister on the claim made. It was not entitled to reframe that claim by materially altering it and then to proceed to decide the reframed claim while ignoring or overlooking the claim actually made. Yet, that is what happened in the present case for the Tribunal only purported to consider the original claim because it misconceived it. Therefore, the Tribunal committed a jurisdictional error, and did not simply make an error of fact, because the actual claim made by the appellant was never considered. The Act required the decision on that claim to be reviewed. What happened here was that the Tribunal considered and decided a claim the appellant had never made, namely one which omitted mention of the loss of her house. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome. It may be "subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected": Applicant WAEE (v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630] (at [47]. This is a matter of substance, not a matter of the form of the tribunal's published reasons for decision. That was tantamount to a finding that she had deliberately lied. Whether or not the lie was on oath, there is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied as Brennan, Dawson, Toohey and Gaudron JJ explained in Smith v NSW Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 268. 42 Had I not formed the opinion that s 424A had not been complied with, I would have granted relief under s 75(v) because the Tribunal used its erroneous understanding, that is, irrelevant material, to come to the conclusion that the appellant was lying about the loss of her house. That conclusion materially affected its reasoning process about her credibility generally so as to lead to the dismissal of her claims. As Mason CJ held in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355-356 at common law '...the making of findings and the drawing of inferences in the absence of evidence is an error of law. (see too: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 at 232-233 [25] - [28] , 238 [49], 251[99]. This was no mere erroneous finding of fact within jurisdiction, rather it was a jurisdictional error. I certify that the preceding forty- four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

whether provisions of s 424a(1) of the migration act 1958 (cth) were observed by refugee review tribunal whether wrongly finding that appellant had not made in original claim was mere error of fact where factual error demonstrates jurisdictional error on part of refugee review tribunal treatment of omissions in evidence of applicant by refugee review tribunal whether jurisdictional error on part of refugee review tribunal appeal allowed 'information that the tribunal considers would be the reason or part of the reason, for affirming the decision that is under review' migration law words and phrases

The debenture trust deed (Deed) is dated 7 December 1992 and is numbered 462028 by the Australian Securities and Investments Commission. 2 The plaintiff seeks, relevantly, an order pursuant to s 283HB(1) of the Corporations Act 2001 (Cth) (Act) that the charge created by cl 11(b) of the Deed be immediately enforceable including, despite cl 21 of the Deed, by the appointment of a receiver. On the hearing today counsel for the plaintiff has asked that the form of relief be expanded to include the possibility of the appointment of a receiver and manager. 3 In the alternative, the plaintiff seeks, pursuant to s 283HA of the Act, a direction that the plaintiff is justified in issuing certificates under cl 14(p) and cl 21 of the Deed. The debentures are referred to in the Deed as "Issued Stock" or "Issued Debenture Stock. " Clause 12(c) provides for the giving of guarantees by subsidiaries of the defendant whenever the defendant is called upon in writing by the plaintiff to procure the giving of them. Some guarantees have been given by certain wholly owned subsidiaries. Clause 14 provides that the security is to become enforceable upon the happening of any one or more of the events set out in cl 14. (p) ... if the Trustee certifies in writing that after due enquiry of the Directors and investigation of the records of the Company in its opinion the continued carrying on of the business of the Company will, by reason of trading losses by the Company or any Guaranteeing Subsidiary endanger the security of the Stockholders. The words "and manager" are superfluous because the expression "receiver" is defined in cl 1A to mean a receiver or a receiver and manager. 6 Clause 21 of the Deed provides that prior to the appointment of a receiver or appointing a receiver pursuant to cl 17 of the Deed, the plaintiff shall give written notice of its intention to the defendant specifying the particular breach or event relied upon. The plaintiff is not to appoint until a period of 14 days has expired after the giving of that notice. Nor is the plaintiff to appoint if it has notified the defendant that the breach or event relied on has been remedied to its satisfaction or, in its opinion, no longer detrimentally affects the security. 7 There are express exceptions to the requirement of 14 days' notice. One is where the plaintiff certifies to the defendant that in its opinion delay would imperil the interests of the debenture holders. Another, which is peculiar, is the happening of any of the events mentioned in cl 14 of the Deed. This is "peculiar" because cl 14 lists all of the events of default. Accordingly, on its face that exception writes the 14 day notice requirement out of the Deed. I will not discuss any possible workable construction that might avoid this result. The definition applies to Ch 6D ("Fundraising") by reason of s 700(1). The offering of debentures is therefore an offering of securities within s 706 , and Pt 6D.2 of the Act applies to it. Since none of the exceptions in s 708 or s 708AA apply, an offer by the defendant of its debentures for reinvestment would require disclosure to investors under Ch 6D. Section 283AA (the first section within Ch 2L) requires the entering into of a trust deed before a body makes an offer of debentures that needs disclosure to investors under Ch 6D. The Deed was entered into pursuant to the requirement of a predecessor of the present s 283AA. He provided a report to the plaintiff dated 20 May 2008. 10 The defendant is a wholly-owned subsidiary of Hotel Nominees Pty Limited (Hotel Nominees) as trustee for the "Asset Discretionary Trust. " Hotel Nominees is associated with Mr Peter George, a director of the defendant. 11 The defendant's balance sheet shows that an asset of the defendant is a $67.6 million loan to Hotel Nominees. The security for the loan is largely Hotel Nominees' shareholding in the defendant. There is evidence that Hotel Nominees has no short-term capacity to pay the loan, and that if the amount of the loan is removed as an asset from the defendant's balance sheet, the defendant would have a negative net asset value as at 31 March 2008 of $37.268 million. If other related party loans are also removed, the negative net asset value at that date would have been $90.323 million. 12 Management accounts provided to Mr Hall by the defendant for the period 1 July 2007 to 31 March 2008 showed that the group incurred a loss after tax of $4.705 million, but that if capitalised interest from loans by the defendant to Hotel Nominees and other related entity loans was not included as income, the loss for that period would be $14.812 million. 13 Again, the defendant's statutory accounts for the year ended 30 June 2007 record a profit after tax of $2.529 million, but if capitalised interest from loans to Hotel Nominees and other related entities was not included as income, the accounts would have recorded a loss of $5.532 million. 14 Mr Hall's affidavit and report suggest that the defendant is trading at a loss and does not presently have sufficient cash available to meet its ongoing financial obligations. 15 His evidence is that within the defendant's stated income for the nine-month period ending 31 March 2008 is $10.107 million in capitalised interest from loans to Hotel Nominees and related entities. 16 According to Mr Hall's report, the cash inadequacy of the defendant may be relieved temporarily, but by no later than September 2008 the company would again be in cash shortfall. 17 Mr Hall's affidavit concludes that the defendant "has a deficiency of assets, unless substantial value is attributed to its loan to Hotel Nominees, and all its related party loans and investments are recoverable at their stated values". I need not discuss the detail of those. 19 Of the then four directors, two of them, Dr Hewson and Mr Garrett, resigned on 3 June 2008. The reason given in one case, and I infer the reason that operated in the other too, was that the director had become convinced that the cash injection was not to occur, and that if it did not occur the defendant would not be able to pay its way. The resignation of those two directors left Peter George and Nigel Purves as the continuing directors. 20 At the hearing on 13 June 2008, the defendant applied for an adjournment on the basis that a proposal was being formulated by a company called Inquisitor Pty Limited (Inquisitor) as trustee of the "Cooroy unit trust. " Inquisitor is associated with Mr Purves. It was hoped that this "Purves proposal" would lead to an injection of cash, which would enable the defendant to recover its position. It was proposed that Inquisitor would acquire all of the units of the Asset Discretionary Trust (of which, it will be recalled, Hotel Nominees, the company associated with Mr George, was the trustee). That proposal depended upon certain named investors providing funding. Initially, the plaintiff opposed the application for an adjournment, but eventually in the light of certain undertakings to the Court that were proffered by the defendant, and after discussion between Bench and Bar, an adjournment to yesterday's date was not opposed. 21 Unfortunately, the Purves proposal has come to nothing. I need not address the detail of what happened in that respect. However, quite recently a further proposal on behalf of Turnbull Group Developments Pty Limited has re-emerged. I discussed this proposal in my reasons for refusing the defendant's request for an adjournment of the hearing yesterday: see In the matter of Elderslie Finance Corporation Limited, Perpetual Trustees WA Limited v Elderslie Finance Corporation Limited [2008] FCA 1045. I will take those reasons as read. In summary, the Turnbull proposal is so vague and subject to so many conditions that I do not think the position of the debenture holders should be made subject to the hope that it will ever take concrete form. It is unnecessary to recount all the detail of that evidence. A cash flow provided by the defendant on 26 June 2008 shows that the defendant would have a positive cash flow as of 30 June 2008, but that projection assumes a capital injection of $9.4 million. That assumption cannot be justified. Another problem is that the projection does not allow for "parked" debts. That expression is used to refer to debts that are not for the time being to be paid. If the $9.4 million cash injection is removed and the parked debts are included, the defendant would have a cash deficit as at 30 June 2008 of $17.38 million. If a comparable calculation is done in respect of the cash flow forecast provided on 27 June 2008, the cash deficit as at 30 June 2008 would be $16.704 million. 23 The defendant had $5,869,262.57 worth of debentures which had matured as at 25 June 2008. According to the evidence, debenture-holders had required payment of $4,243,354.72 of this amount --- a redemption rate of 72%. It is to be noted that in accordance with its undertaking given to the Court on 13 June 2008, the defendant has not been meeting redemption requests since that date. 24 There is in evidence a document of the defendant listing "Debentures matured with redemption requests as at 25/06/2008. " Over several pages this document lists investors whose debentures had matured on dates ranging from 2 May 2008 to 25 June 2008. It is put for the defendant that one cannot know for sure that the redemption requests were made before the defendant gave the undertaking to the Court on 13 June. My own calculation is that 77 of the investors had debentures which matured in the period from 2 May 2008 to 12 June 2008, that is to say, before the defendant gave the undertaking to the Court on 13 June 2008. It is possible that all 77 of them deferred making their request for redemption until after 12 June 2008 but this seems unlikely. However, I do not base the conclusion to which I arrive below on an inference that in fact any request for redemption was made during the period from 2 May 2008 to 12 June 2008. 25 The financial difficulties of the defendant can be conveyed in various other ways. For example, in July 2008 $8,984,290.67 of debentures are due to mature and it is on the cards that 72% of this amount ($6,468,689.28) or more will be called for. 26 From July to September 2008 $38,290,692 of debentures are due to mature. If, say, 70% of that amount is called for, there would be an obligation to pay $26,803,484. 27 Unfortunately, I think the inferences to be drawn are that the defendant is trading at a loss and is insolvent, that the assets of the defendant and it subsidiaries represent the value of the debenture holders' security save to the extent that they or some of them form security in favour of third parties having priority, and that the defendant's liabilities are significantly greater than its assets. 28 The question is what, if anything, should be done by the Court in this situation. Mr Walton of senior counsel for the defendant submits that it should be left to the plaintiff to take its course under the Deed. He puts persuasively that the Deed provides a mechanism and if the plaintiff as trustee for the debenture holders is so sure of itself it should be left to follow the course laid down by the Deed. 29 While I think this is the most difficult part of the case I have come to the conclusion that the Court's discretion should be exercised in the way sought by the plaintiff. The first reason is that there is at least some question or doubt as to whether the plaintiff is entitled under the Deed to appoint a receiver or receiver and manager immediately. Yet the debenture holders' position is deteriorating. 30 Lest it should be thought that my reference to the existence of some question or doubt is misconceived, it is to be noted that senior counsel for the defendant does not concede, and I do not blame him for this, that if the plaintiff were to go ahead and make an appointment under the Deed, that appointment would not be open to challenge by the defendant. Indeed, the defendant raised some arguments in the course of the hearing directed to showing that the power to appoint a receiver may not yet have become exercisable. 31 The provision on which the plaintiff relies, s 283HB(1)(c) , envisages that there may be circumstances in which a security is not yet immediately enforceable in accordance with the terms of the security and the general law, but it will be appropriate for the Court to make an order that the security be immediately enforceable. An obvious example is a situation in which debentures have not fallen due for payment but all the evidence shows that the borrower is insolvent and will not be able to pay the debentures when the time for payment arises. 32 The second reason is that there has already been some delay since the hearing on 13 June 2008. The adjournment was directed to allow an opportunity for the Purves proposal to be explored. However, not only has that proposal come to nothing but the financial position of the defendant has deteriorated and will continue to deteriorate. In other words, the urgency has increased since the adjournment on 13 June 2008. 33 A third reason is that on the evidence, the giving of the 14 days' notice, if indeed it is required by the Deed (see [7] above), would not serve any useful purpose. It is not as though there is evidence that if only the notice provision were followed, all would be well and the position would be saved. There is no evidence, and it has not been submitted, that a staying of the plaintiff's hand for 14 days would provide an opportunity for the defendant to extricate itself from its predicament. 36 It is not necessary to discuss the relief under s 283HA that the plaintiff sought in the alternative. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

application by trustee for debenture holders under s 283hb of corporations act 2001 (cth) for an order that security (floating charge) for the debentures be enforceable immediately borrower corporation insolvent some doubt or question whether trustee entitled under terms of debenture trust deed to appoint receiver or receiver and manager immediately consideration of circumstances relevant to exercise of court's discretion whether to make order. held : order made as sought. corporations

It was alleged that, in 2001, Edison and the CEPU agreed that Edison would not engage the services of any electrical contractor to perform work at the Loy Yang B power station unless that contractor had entered into a certified agreement with the CEPU. After the proceeding was commenced the ACCC and Edison agreed on terms of settlement and filed a jointly agreed statement of facts and joint submissions which supported the making of declarations that Edison had contravened the provisions of ss 45E(3) and 45EA of the Act and orders providing for the payment of a pecuniary penalty and costs. Edison filed a defence in which it admitted the relevant contraventions. 2 The CEPU contested the allegations made against it. The proceeding, in so far as it involved allegations against the CEPU, went to trial before Young J. On 19 December 2006 his Honour made orders declaring that the CEPU had been an accessory to the contraventions, by Edison, of ss 45E(3) and 45EA of the Act . His Honour further ordered that the CEPU be restrained for a period of three years from engaging in any repetition of such conduct directed to Edison: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd [2006] FCA 1777. Having heard further submissions relating to the quantum of penalty and costs his Honour, on 16 January 2007, ordered that the CEPU pay a penalty of $125,000 and costs of $200,000: see Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No. 2) [2007] FCA 11. The CEPU has lodged an appeal against his Honour's decision. The appeal grounds challenge his Honour's findings in relation to liability and penalty. 3 There remains for consideration the question of whether the Court should make the orders which the ACCC and Edison agreed should be made in respect of Edison's contraventions of the Act . As already noted, the parties have filed an agreed statement of facts and joint submissions in support of proposed orders. On 9 February 2007 I heard argument as to whether the proposed orders should be made. I was provided with a copy of an amended version of the orders sought which had been framed in such a way as to render them harmonious with the orders made by Young J. Counsel advised that there had been no material changes to the statement of facts (including information as to Edison's financial position) which had been earlier filed. Counsel for Edison advised that his client wished the Court to proceed to make orders notwithstanding the pending appeal against Young J's decision and the possible relevance of the outcome of that appeal to his client's legal position. 4 Having considered the parties submissions I determined to make the orders sought. I advised the parties that I would publish my reasons at a later date. These are those reasons. 5 The agreed statement of facts, dated 19 September 2005, which I accept, appears on the Court file. It is not necessary to set it out in full. The substance of the ACCC's complaint was that Edison had agreed with the CEPU that it would not engage the services of electrical subcontractors which did not have certified industrial agreements with the CEPU. It was contended that Edison had given effect to its obligations under this agreement by declining to engage the services of a company --- DJN Electrical and Instrumentation Pty Ltd ("DJN") --- which it had previously engaged and which was, at the time of the making of the agreement, performing work for Edison at the Loy Yang site. From at least August 1999 to August 2001, Edison regularly acquired from DJN Electrical and Instrumentation Pty Ltd ('DJN') electrical services which were provided for Edison at the Loy Yang B power station. In the period between 1 May 2001 and 20 August 2001 DJN provided electrical services for Edison at the Loy Yang B power station on 16, 17, 18, 22, 23, 28 and 29 May 2001; 12 July 2001; on various days between 16 July 2001 to 8 August 2001 inclusive and 15 August 2001. Edison did not acquire any electrical services from a third party between 16 and 24 August 2001. DJN has at all material times employed people whose employment was governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998. DJN has not at any time entered into an enterprise agreement with the CEPU. At all material times, Edison knew the facts stated in paragraphs 30 and 31. At a time before 13 August 2001 Mr David Nabulsi of DJN informed Mr Wayne Buckley, who at the time was the maintenance co-ordinator for Edison, that DJN had not entered into any enterprise bargaining agreements. On the basis of that information Mr Buckley assumed that the employment of employees of DJN was governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998. Between 16 August 2001 and about 1 March 2004 DJN did not supply electrical services directly for Edison at the Loy Yang B power station with the exception of some minor works performed by it on 20 September 2001. Those services involved modifying some previous work which DJN had performed at the Loy Yang B power station for another contractor in the period between 1 March 2001 and 1 August 2001. DJN performed works at the site of Ondeo Nalco Australia Pty Ltd, a subcontractor to Edison, on 17 September 2003, 24 September 2003, 22 October 2003, 28 January 2004, 29 January 2004 and 30 January 2004. Between 16 August 2001 and about 26 January 2004 Edison did not request DJN to provide a quotation in relation to providing electrical services or to provide such services at the Loy Yang B power station. This was because Edison had entered into the contracts, arrangements or understandings with the CEPU referred to in paragraphs 36 and 37 below. ... [B]etween about 13 and 24 August 2001 Edison entered into an arrangement, or arrived at an understanding with the CEPU containing a provision to the effect that Edison would not engage any electrical contractor who employed people whose employment was governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998 to provide services at the Loy Yang B power station if that electrical contractor did not have a current enterprise agreement with CEPU. Further or in the alternative ... on or about 24 August 2001 Edison entered into a contract or arrangement, or arrived at an understanding with the CEPU, containing a provision to the effect that Edison would request of any company which it contracted to work at the Loy Yang B power station and which employed people whose employment was governed by the National Electrical , Electronic and Communications Contracting Industry Award 1998 that the company have a current enterprise agreement with CEPU before the company commenced work. Edison admits that it contravened section 45EA of the Act by giving effect to the arrangement or the understanding referred to in paragraph 39 above and between 21 August 2001 and about 20 November 2003. Edison provided information and documents sought by the ACCC. Confidential information was provided as to the financial position of Edison. 6 The declarations, proposed by the parties, and made by the Court, identify the relevant conduct and declare that it involved contraventions of the Act . Such declarations are appropriate in circumstances such as the present. They serve the public interest by making it plain that conduct of the kind admitted by Edison contravenes the Act : see Australian Competition and Consumer Commission v Midland Brick Company Pty Ltd (2004) 207 ALR 329 at 333; Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91. 7 The parties were agreed that a single pecuniary penalty should be imposed in respect of all of the contravening conduct. It was submitted that the appropriate amount was $120,000. The parties acknowledged that it remained a matter for the Court to make an independent judgment as to the amount of the penalty. The exercise of the Court's powers in this regard is guided by the principles outlined in the joint judgment of Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 291 . When corporations acknowledge contraventions, very lengthy and complex litigation is frequently avoided, freeing the courts to deal with other matters, and investigating officers of the Australian Competition and Consumer Commission to turn to other areas of the economy that await their attention. At the same time, a negotiated resolution in the instant case may be expected to include measures designed to promote, for the future, vigorous competition in the particular market concerned. These beneficial consequences would be jeopardised if corporations were to conclude that proper settlements were clouded by unpredictable risks. A proper figure is one within the permissible range in all circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, except in a clear case. 8 The maximum monetary penalty which may be imposed upon a corporation for a contravention of ss 45E and 45EA of the Act is, in each case, $750,000: see s 76(1A) of the Act . Edison's admissions, therefore, render it liable to a maximum aggregate penalty of $1.5m. It was submitted that an appropriate penalty, absent any ameliorative factors, was one tenth of that amount, namely $150,000. A discount of $30,000 was applied to take account of Edison's cooperation with the ACCC in the course of the ACCC's investigation and Edison's early admission of liability: cf Australian Competition and Consumer Commission v Ithaca Ice Works Pty Ltd (2002) ATPR 41-851. 9 In determining the "proper range" within which a monetary penalty for contravention of the Act falls a wide range of considerations has potential application. The Court is required, by s 76(1) of the Act , to have regard "to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under ... Part [VI] to have engaged in any similar conduct. " Additional factors have been identified by the Court: see Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 at 52,152-153; ACCC v NW Frozen Foods (1996) ATPR 41-515 at 42,444-42,445. To the extent that these factors have application in the circumstances in the present case, I have taken them into account. 10 The agreement between the ACCC and Edison had been entered into well before Young J determined that a penalty of $125,000 should be imposed on the CEPU. In these circumstances the principle of parity assumes considerable importance in determining the appropriate penalty to be imposed on Edison. That principle of parity, better known in the context of criminal sentencing, is applicable in cases such as the present: see Northwest Frozen Foods at 295. It requires, inter alia, that disparate penalties should not be imposed on co-offenders such as to engender "a justifiable sense of grievance" on the part of one of them or as to "give the appearance that justice has not been done": see Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606 at 611; Postiglione v The Queen [1997] HCA 26 ; (1997) 189 CLR 295 at 301, 338. The tests are objective and they are to be applied "having regard to the different circumstances of the co-offenders in question and their different degrees of [culpability]": Postiglione at 302. 11 Initially, I was concerned that the imposition of a monetary penalty on Edison which was only slightly less than that imposed on the CEPU might not be in accord with the parity principle having regard to the finding of Young J that the CEPU was the instigator of the offending conduct and that the CEPU could not claim the benefit of any discount by reason of any cooperation with the ACCC's investigation or an early willingness to acknowledge liability. However, having heard argument on the point, I was persuaded that the imposition of a penalty of $120,000 on Edison would not contravene the parity principle. I have come to this view having regard to a number of factors. The first is that the CEPU was penalised as an accessory rather than a party principal. Moreover it was penalised in respect of a single course of conduct which extended over two weeks: see [2007] FCA 11 at [40] - [41] , [50]. Edison, on the other hand, committed two separate contraventions of the Act , one under s 45E and the other under s 45EA. The contravention of s 45E occurred when Edison, in August 2001, entered into the agreement with the CEPU. The contravention of s 45EA , which occurred when Edison gave effect to the agreement, involved conduct undertaken over a period of more than two years (21 August 2001 until 20 November 2003). 12 The nature of the contravening conduct to which Edison has admitted and the circumstances in which it occurred appear from the passages in the agreed statement of facts extracted above at [5]. The demand, by the CEPU, which led to the making of the offending agreement, was made at a time when Edison was peculiarly susceptible to industrial pressure by reason of pressing commercial imperatives. The principal victim of the agreement was DJN. It was unable to obtain work from Edison at the Loy Yang site for over two years. Edison was deprived of the option of engaging DJN and any other subcontractors who did not have certified agreements with the CEPU. It is not possible to quantify the losses sustained by DJN and Edison which were caused by the agreement. Those losses do not appear to have been significant in monetary terms. 13 It is necessary, in fixing an appropriate penalty, to have regard to the need to deter other companies from engaging in similar conduct. In my view a penalty of the magnitude proposed serves this purpose. 14 I have examined the confidential attachment relating to Edison's financial position. No issue arises as to Edison's capacity to pay the proposed penalty. • Edison's cooperation with the ensuing ACCC enquiry. • Edison's readiness to admit the contraventions and the related avoidance of legal costs. • The absence of any previous contraventions of the Act which had come to the attention of the ACCC or its predecessor. • The introduction by Edison of an extensive ongoing compliance programme with a view to ensuring that its managers and other employees are aware of the provisions of the Act insofar as they impinge on the company's business operations.

restrictive trade practices prohibition of arrangements affecting the acquisition of goods or services where first respondent entered into and gave effect to an arrangement with second respondent that it would not engage the services of electrical subcontractors which did not have certified industrial agreements with the second respondent pecuniary penalty penalties under s 76 of the trade practices act 1974 (cth) for contraventions of part iv effect of joint submissions from parties proposing particular orders relevant factors in determining level of penalty application of parity principle where penalty already imposed on co-offender object of ensuring compliance with the act by deterrence jointly proposed penalty deemed appropriate trade practices trade practices

There are numerous parties to the proceedings and needless to say, the litigation is complex. 2 The hearing of the main proceedings commenced before Justice Sackville on Monday 12 September 2005, and is continuing. 3 On 28 February 2006 the Seventh, Eighth and Twenty-first Respondents (collectively referred to as 'Nine') issued a subpoena directed to the AFL calling for production to the Court of certain documents on 6 March 2006. 4 On 6 March 2006 the AFL produced to the Court a number of documents identified in 32 numbered paragraphs in the schedule to these reasons for judgment marked 'MDR-2'. Until 5 December 2005 the AFL was a respondent in the proceedings. 5 Network Ten Pty Limited was also a respondent in the proceedings until 6 February 2006. 6 On 31 January 2006 Nine issued Notices to Produce to the Applicants, being Seven Network Limited and C7 Pty Limited, and also to Network Ten Pty Limited, requiring the production of certain documents. On 20 February 2006 the Applicants and Network Ten Pty Limited produced documents to the Court in response to the said Notices to Produce. In respect of four of the documents produced by the Applicants a claim has been made by the Applicants that those documents are privileged from production on the basis of privilege in respect of settlement negotiations. 7 The Applicants have also claimed privilege in respect of the production of seven of the documents produced to the Court by the AFL being the documents numbered 13 and 17-22 inclusive in the schedule MDR-2. It is common ground that the four documents produced by the Applicants for which privilege has been claimed are copies of four of the seven documents produced by the AFL for which privilege claims have also been made. 8 The privilege claims have been made in respect of two separate disputes. The primary dispute is said to be one arising in respect of a deed made 3 September 1997 between the AFL and five companies in the Seven Network Limited group. That deed has been referred to as the 'First and Last Deed'. 9 The second dispute by reference to which one of the privilege claims has been made is the dispute between the Applicants and the AFL in the main proceedings at the time when the AFL was still a party to those proceedings. 12 In about May 2005 the five Seven Network Limited group of companies, which with the AFL, were parties to the First and Last Deed assigned certain rights in relation to that deed to Network Ten Pty Limited so that, thereafter, the parties entitled to rights under the First and Last Deed became the five Seven Network Limited companies and Network Ten Pty Limited, hence Network Ten Pty Limited's interest in the resolution of the so-called First and Last Dispute. 13 By a Notice of Motion filed 23 March 2006 Nine has sought orders that the Applicants and Network Ten Pty Limited produce to Nine for inspection the documents set out in Schedule 1 to the Motion being the seven documents mentioned in the AFL list of documents as documents 13 and 17-22 inclusive and the four documents being copies of four of those seven documents identified as APL.933.001.0001-0005, APL.933.007.0001-0004, APL.933.004.0015-0016 and APL.933.004.0013-0014. 14 It is sufficient for present purposes to deal with the seven documents as identified in the AFL list. In relation to all seven documents the Applicants and Network Ten Pty Limited contend that they ought not to be produced on the basis that they are covered by the privilege in respect of settlement negotiations in relation to the so-called First and Last Dispute. In respect of the document identified as number 17 in the AFL list, the Applicants also object to the production of it on the basis that it is covered by the privilege in respect of settlement negotiations in relation to the dispute between the Applicants and the AFL. 15 The parties are agreed that for the purposes of the present application Order 33 rule 11 of the Federal Court Rules should be taken to apply to the questions which have arisen for determination and further that no distinction should be drawn between documents produced in response to the Notices to Produce and those which were produced on subpoena. The effect of subrule (3) ... is to limit the operation of O33 r11(1) to circumstances in which an order is made for production of a document or thing to the Court, or a person of the kind identified in subrule (1), at a time when the Court, or that person, is authorised to receive evidence. That is, in circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence. The intended effect of O33 r11 is to remove the obligation that would otherwise arise in these circumstances for an objection to the production of the document to be determined according to common law principles notwithstanding that its admissibility into evidence will be governed by the Evidence Act . It [the 2002 amendment to the Federal Court Rules ] was not an attempt by the exercise of the rule making power to have all questions of production at any stage of the litigation process brought under a regime governed in accordance with the Act. That may or may not be a sensible course; the rule making power may or may not extend that far .... Order 33 rule 11 is in a part of the Rules dealing with evidence. Subrule (3) identifies the circumstances where subrule (1) applies. It refers in the last clause to "whether on a trial or hearing or any other occasion". This reference is, however, to occasions for the taking of evidence. Rule 11 seeks to make clear that at the occasion of the trial or hearing or other reception of evidence the production of documents under subpoena will be governed by the Act. Such a course ensures that during the process of the trial or hearing or other reception of evidence there will not be two regimes under which to analyse privilege: that is, the Act at, but only at, the immediate point of adducing evidence, and the common law at the point of answering a call or subpoena. If a question arises under this Part in relation to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question. I accept the correctness of this submission. 25 The First and Last Deed called for the payment of very substantial sums by the five Seven Network Limited companies to the AFL for the rights and benefits conferred by the Deed. However, prior to granting the Third Party Licence the AFL will provide to Seven written notice of the terms and conditions of the Third Party Licence, which notice will constitute an offer from the AFL to Seven to so grant the Third Party Licence to Seven on those terms and conditions (" Last Offer "). The five Seven Network Limited companies and Network Ten Pty Limited contend that constraints should be implied in respect of the terms and conditions which the AFL may include as terms and conditions upon which it would grant an exclusive licence for the broadcast of the AFL competition by way of free-to-air television to the five Seven Network Limited companies and Network Ten Pty Limited in a 'First Offer', it being contended that the implied constraints flowed from the payment of the very substantial amount by way of consideration for the rights and benefits granted under the Deed. 27 Under cover of a letter dated 12 October 2005 forwarded by facsimile from the AFL to the Chief Executive Officer of the 'Channel 7 Group of Companies' the AFL dispatched a 'Notice of first offer from the AFL provided to the Channel 7 Group of Companies and Network 10 today'. The Notice signed by the Chief Executive Officer of the AFL was two pages in length with a one page schedule attached thereto. 28 On 20 October 2005 Clayton Utz, Solicitors, wrote to the AFL on behalf of the five Seven Network Limited companies and Network Ten Limited in relation to the AFL's 'First Offer' dated 12 October 2005. It is our clients' contention that the notice is not a valid notice in accordance with the requirements of the deed made on 3 September 1997, referred to in the notice. The use of the underlined word imports a clear requirement that a notice must not (if it is to be valid) propound terms and conditions that would augment in substantial measure the obligations incurred by the licensees under the AFL Terms Sheet. Paragraphs 2, 3 and 4 of Annexure 1 disregard this limitation. In the light of the above objections, we ask that you withdraw the notice and formulate a new one for our clients' consideration. The question of price also requires consideration. The right of first refusal granted to our clients pursuant to clause 4 of the deed is such that the AFL is under an obligation to make a "fair and reasonable offer to our clients". ... Our clients' present view is that the prices at which the AFL's "offer" is made are questionable from this perspective. We therefore ask the AFL to disclose in appropriate detail the basis upon which the amounts proposed in paragraphs 1, 2, 3, 4 and 5 of the notice are respectively formulated. Unless the AFL is prepared to start afresh with a new first offer, that is compliant with clause 4 of the deed and "fair and reasonable" as to price, we shall commence proceedings seeking an injunction restraining the AFL from negotiating with any third party in purported pursuance of clause 4(d)(i) of the deed. In the first instance such proceedings would be founded on the contention (leaving the question of price on one side for the time being) that the notice is invalid for the reasons articulated in paragraph 3 of this letter. On 21 October 2005 the General Manager --- Broadcasting, Strategy & Major Projects of the AFL, Mr Ben Buckley, forwarded a 'fresh Notice of First Offer from the AFL ... to Network Ten and the Channel 7 Group of Companies'. The previous notice of 12 October 2005 was withdrawn. 30 By letter dated 2 November 2005 Clayton Utz wrote to Browne & Co in relation to the revised notice of First Offer dated 21 October 2005. That letter hinted at the possibility of proceedings being instituted in respect of the revised First Offer. However ... the price at which the relevant rights are offered to our clients remains the same as that specified in the Former Notice. Our clients remain of the view that the amounts specified in paragraphs 1-5 of the Revised Notice, are unfair and unreasonable. Such proceedings were to leave 'the question of price on one side for the time being'. 32 Clayton Utz's letter of 2 November 2005 focuses upon the question of whether or not the price proposed by the AFL in its first offer and in its revised first offer was fair and reasonable. Whilst undertakings were sought, no proceedings were directly threatened. Rather, questions were asked about the acceptance of service of process and an indication was given that if 'our clients are required to commence proceedings' reliance would be placed upon the letter of 2 November 2005 on the issue of costs. 33 In a letter from Browne & Co to Clayton Utz dated 28 November 2005 reference was made to a telephone conference on Friday 18 November 2005 between representatives of the AFL, representatives of the Seven Network Limited group of companies and representatives of Network Ten Pty Limited in which Mr Falloon, the Executive Chairman of Network Ten Pty Limited, said that Channel 7/Network Ten 'would not challenge the AFL's First Offer'. 34 It can be seen that any threatened challenge to the AFL's revised First Offer of 21 October 2005 had been abandoned by 18 November 2005 and that the relevant communications in respect of which privilege is now claimed took place in the period between the transmission of the revised First Offer of 21 October 2005 and the formal declaration by the five Seven Network Limited companies and Network Ten Pty Limited of 18 November 2005 that they would not challenge the AFL's revised First Offer. 35 On the hearing of the motion calling for the production of the documents in question for inspection by Nine, Messrs A J Meagher SC and A J Payne of counsel appeared for Nine and Mr J A Halley of counsel appeared for the Applicants. Network Ten Pty Limited, as a person who might make and substantiate sufficient lawful objection to production of the documents in question on grounds of privilege within the meaning of Order 33 rule 11(1) , also appeared by Mr P J Armitage, solicitor, of Blake Dawson Waldron to advance the claim of privilege referred to above in respect of the so-called First and Last Dispute. 36 By the letter dated 28 November 2005 from Browne & Co to Clayton Utz the AFL requested the provision of written notice by Channel 7/Network Ten that they had rejected the AFL's revised First Offer. Without any apparent response to that request, Seven Network and Network Ten Pty Limited proceeded, by letter dated 16 December 2005, to submit an offer to the AFL for the broadcast rights in respect of the Australian Football League competition from 2007 to 2011 inclusive. All qualitative benefits will remain as previously prescribed in our offer dated 9 th November, 2006 (sic) . 38 On 20 December 2005 Network Ten Pty Limited and Seven Network sent a further letter to the AFL referring to an earlier letter dated 15 December (sic), presumably intended as a reference to the letter of 16 December 2005. 40 The Applicants in the proceedings and Network Ten Pty Limited submit that the seven documents, the production of which has been sought by Nine, are privileged from production because they record communications made between persons in dispute in connection with an attempt to negotiate a settlement of that dispute, namely, the dispute between the Seven Network Limited group of companies and Network Ten Pty Limited on the one hand and the AFL on the other arising by virtue of Clayton Utz' letter of 2 November 2005 in respect of the revised First Offer of 21 October 2005. The Applicants in the proceedings submit that document number 17 in the AFL list of documents is also privileged from production on the basis that it constitutes a communication made between persons in dispute in connection with an attempt to negotiate a settlement of that dispute, namely, the claims made by the Applicants against the AFL in the main proceedings as then constituted, notwithstanding that no dispute then existed in those proceedings between Network Ten Pty Limited and the AFL. 41 Mr Halley submits that s 131(1)(a) of the Act should be construed as if the words 'a communication that is made between persons in dispute' read 'a communication that is made between some or all of the persons in dispute'. 42 In the alternative, Mr Halley submits that a communication between the Applicants in the proceedings and Network Ten Pty Limited with the AFL can come within the expression 'a communication ... between one or more persons in dispute and a third party' in s 131(1)(a). I am unable to accept this submission. The AFL was not a 'third party' in relation to the dispute in the main proceedings between the Applicants and the AFL. 'Third parties' would include people such as doctors or accountants who may be consulted in relation to settlement proposals or possibilities (see S Odgers, Uniform Evidence Law , 6 th ed, Lawbook Co, Sydney, 2004, para 1.3.13820). 43 Further in the alternative, Mr Halley submits that the documents in question fall within s 131(1)(b) of the Act as documents, whether delivered or not, that have been prepared in connection with attempts to negotiate a settlement of the relevant disputes. 44 This last mentioned submission raises the question as to what, if any, distinction should be drawn between the word 'communication' where used in s 131(1)(a) of the Act and the word 'document' where used in s 131(1)(b) of the Act. In my opinion, the word communication is intended to embrace both oral and documentary communications and not simply oral communications. 45 When s 131(2)(a) speaks of persons having 'tendered the communication or document in evidence' it contemplates the existence of documentary 'communications' capable of tender. It is not limited to oral communications. This being the case, s 131(1)(b) of the Act should, in my opinion, be restricted in its application to documents other than documentary communications contemplated by s 131(1)(a). I would understand subparagraph (b) to cover documents such as working papers referable to the preparation of a settlement offer or a note recording the details of a settlement offer. 46 In relation to the seven documents for which privilege has been claimed Mr Meagher SC submits that the Applicants and Network Ten Pty Limited have failed to establish that they are relevantly in dispute with the AFL in relation to the revised First Offer of 21 October 2005 as at the date of the relevant communications and further that any of the documents in question is a communication in connection with an attempt to negotiate a settlement of such a dispute within the meaning of s 131(1) of the Act. 47 In relation to document number 17 in the AFL list of documents Mr Meagher SC submits that the document is not a communication between persons in dispute in the main proceedings, given the participation of Network Ten Pty Limited with the Seven Network Limited companies in the exercise of rights under the First and Last Deed and the making of the relevant communications. Mr Meagher SC further submits that the substance of the evidence contained within document number 17 has been partly disclosed with the express or implied consent of the persons in dispute and that a full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, within the meaning of the exception to the privilege rule contained in s 131(2)(c) of the Act. He draws attention to the letters dated 16 December and 20 December 2005 which refer to the letter dated 9 November 2005, which is document number 17. Mr Halley responds to the last mentioned submission by urging that unless and until such time as the letters of 16 and 20 December 2005 referred to above have been adduced in evidence, there is no occasion for the s 131(2)(c) exception to be invoked. 48 The distinction drawn in s 131(2)(c) between evidence that has been partly 'disclosed' and evidence that has already been 'adduced' is not entirely clear. The fact that the letters of 16 and 20 December 2005, which refer to the 9 November 2005 letter and give rise to the alleged partial disclosure of that letter, are not yet in evidence seems to me to miss the point. The question is, when should it be permissible to adduce evidence of that letter so disclosed to enable a proper understanding of all the other evidence in the main proceedings. 49 I turn now to a consideration of the documents for which privilege has been claimed, dealing with them seriatim by reference to the numbering in the AFL list of documents MDR-2 as follows. DOCUMENT NO. As a matter of inference from its terms, one could conclude that it was sent by Network Ten Pty Limited to the AFL after Clayton Utz sent Browne & Co their letter of 2 November 2005 concerning the revised First Offer. Whilst the document refers to the communication between Clayton Utz and Browne & Co, which, on one construction, might be said to give rise to a dispute in relation to the revised First Offer, the document, which was written on a 'without prejudice and confidential' basis, serves two functions. Firstly, it formally challenges the revised First Offer as a valid First Offer under the First and Last Deed. Secondly, it records a 'without prejudice' offer from Ten and Seven in respect of AFL broadcast rights for the period of six years commencing 1 January 2007. As a document which initiates a dispute with the AFL, it does not, in my opinion, fall within s 131(1) of the Act. Furthermore, the offer contained within it does not amount to a communication in connection with an attempt to negotiate a settlement of the dispute which it initiates, namely, whether the revised first offer of 21 October 2005 complies with First and Last Deed. The without prejudice offer is nothing other than a commercial proposal which happens to be recorded in a document which challenges the revised First Offer as a valid First Offer under the First and Last Deed. For a communication to answer the description of one 'in connection with an attempt to negotiate a settlement' of a dispute there must be a direct connection. 'Connection' does not in the context of s 131(1) of the Act connote a tenuous connection (see GPI Leisure Corporation Limited (in liquidation) v Yuill ('Yuill') (1997) 42 NSWLR 225 at 226). Whilst the use of the words 'without prejudice' is suggestive of an attempt to negotiate a settlement of a dispute, the use of those words is not conclusive. In Yuill , Young J, as his Honour then was, asked rhetorically what is an 'attempt' to negotiate a settlement? I think really it is a question of nexus. There may be many communications between parties, which one can read between the lines as saying that certain things may happen, and if those certain things happen, the dispute might be settled. I do not consider that generally such a communication would fall within the privilege in s 131(1)(a). DOCUMENT NO. Whilst it may have been communicated at a time when Network Ten Pty Limited and Seven Network were in dispute with the AFL as to the sufficiency of the revised First Offer of 21 October 2005 as a valid First Offer under the First and Last Deed, it was not relevantly connected with an attempt to negotiate a settlement of that dispute. It had nothing to do with it. The document was written on a 'confidential and without prejudice' basis and was a commercial offer with a view to securing AFL TV rights for a six year term from 2007 to 2012 inclusive. Seven Network agrees that on signing a binding agreement it will release the AFL from the current litigation. The document is neither an express acceptance nor an express rejection of the revised First Offer. The First and Last Deed does not provide for negotiation in respect of the terms of the First Offer after the offer has been made. The document cannot be read as an offer to settle a dispute as to whether the First and Last Deed required the consideration in the revised First Offer to be fair and reasonable and whether the consideration proposed was in fact fair and reasonable. The document is not privileged from production on the basis of privilege in respect of settlement negotiations concerning the dispute in relation to the sufficiency of the revised First Offer as a valid First Offer. The inclusion of clause 11 within the joint offer of Network Ten Pty Limited and Seven Network to the AFL, certainly provides a connection with the dispute between the Applicants and the AFL in the main proceedings. However, the communication has not been made between the 'persons in dispute' in relation to that dispute nor has it been made for the purpose of achieving a settlement of that dispute. The communication was made for the purpose of securing a commercial advantage for Network Ten Pty Limited and Seven Network in respect of AFL TV rights for the six year period mentioned. The nexus between the communication and the dispute is not such as to establish an attempt to negotiate a settlement of that dispute. The document is not privileged from production on the basis of privilege in respect of settlement negotiations concerning the claims made in the main proceedings by the Applicants against the AFL. It is unnecessary to consider the application of the exception to a claim for privilege under s 131(2)(c) in the circumstances. Were it otherwise, it would be a matter for the trial judge to determine in the light of the 'other evidence that has been already been adduced'. DOCUMENT NO. Reference is made within the substantive part of the document to a possible challenge to the AFL's revised First Offer in terms of price but does not amount to a communication in connection with an attempt to negotiate a settlement of the dispute in respect of the AFL's revised First Offer of 21 October 2005. Seven and Ten reserve their position to challenge the AFL's first offer in terms of price, but no proceedings in that regard will be issued prior to 5.00 pm Friday 18 November 2005. DOCUMENT NO. It is a revised version of document number 18. The modification does not relevantly affect the privileged status of the document. It is not privileged from production. DOCUMENT NO. It is concerned with the terms in which one of the paragraphs in the documents numbered 18 and 19 is expressed. Like those documents it is not privileged from production. DOCUMENT NO. It is further revision of the document which in its first version was document number 18 and its second version document number 19. At the highest it amounts to a communication in relation to the deferral of any litigation in respect of such dispute. The amendments to the document do not affect its status so far as privilege is concerned. It is not privileged from production in accordance with s 131(1) of the Act. DOCUMENT NO. It is a copy of document number 21 endorsed with the word 'Agreed' to which the signatures of Mr N Falloon of Network Ten Pty Limited and B McWilliam of Seven Network Limited have been added. The agreement is not connected with an attempt to negotiate a settlement of the challenge to the sufficiency of the revised First Offer of 21 October 2005 as a valid First Offer under the First and Last Deed. The comments in respect of document number 21 are equally applicable to this document. The document is not privileged from production. 51 Nine is entitled to relief as sought in its Notice of Motion.

meaning of 'in connection with' and 'attempt' in s 131(1) of the evidence act privilege in respect of settlement negotiations

The earlier application to the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 11 July 2003. In view of the need for leave to appeal to be granted, the 'appellants' are described as 'applicants' in these reasons. At the hearing, the application for leave to appeal was dismissed. These are my reasons for that decision. They arrived in Australia on 25 November 2002 and jointly applied for protection visas on 24 December 2002 which were refused by a delegate of the first respondent on 30 January 2003. On 13 November 2006, the Federal Magistrate heard an application for summary judgment against the applicants on the grounds that the applicants' application was not filed within the timeframe provided for by s 477 of the Migration Act 1958 (Cth) (the Act). The applicants did not attend the court on that day, and the Federal Magistrate proceeded to make an order that the application be dismissed in their absence pursuant to r 13.03A of the Federal Magistrates Court Rules 2005 (Cth). 4 On 17 November 2006, the first applicant applied to have the matter reinstated and annexed a medical certificate dated 11 November 2006, purporting to explain the applicants absence. The application for reinstatement was considered and dismissed in the Federal Magistrates Court on 11 December 2006. It is this decision to which the current appeal relates. The Federal Magistrate refused the application for reinstatement upon reaching each of these conclusions. This decision is correctly described as interlocutory, and as such this Court must first grant leave to the applicants prior to hearing an appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). No such application for leave has been received in this instance. On 13 March 2007 the respondent filed a notice of objection to competency citing these grounds. 8 Without seeking the appropriate leave to do so, the applicant filed a notice of appeal in this Court on 28 December 2006 which raises the following grounds: (a) the decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction; (b) the decision of the Tribunal being affected by jurisdictional error is not a decision to which s 474 of the Act applies; and (c) the decision was a denial of procedural fairness and natural justice. 9 In the circumstances, particularly of the applicants being unrepresented, I treated the notice of appeal as an application for leave to appeal. I therefore did not allow the notice of objection to competency. It was answered by a person purporting to be a cousin of the first applicant. He said that he was standing next to the bedside of the first applicant. The Associate advised that the Court would continue to convene at the appointed time on 1 May 2007 and would telephone the first applicant at that time on the same mobile telephone number. 12 On the convening of the Court on 1 May 2007 a telephone connection was attempted with the first applicant's nominated mobile telephone number. This was attempted on two occasions in the presence of the Court. The number was not answered. A message was left requiring the telephone holder to call the Court's nominated telephone number. Counsel responded that in circumstances where the first applicant was on notice of the possible effect of his conduct in failing to communicate with the Court (other than by providing a medical certificate), made it inappropriate for that course to be followed. I agreed. 16 I therefore proceeded with the hearing in accordance with FCR O 52 r 38A(1)(d). 17 In my opinion the decision of his Honour, the Federal Magistrate is not attended with sufficient or any doubt to warrant it being reconsidered. He was not persuaded on the evidence that there was a reasonable excuse for the applicants' non-attendance at the hearing. There was appropriate evidence on which he could reach that view. Additionally he was satisfied that the application was out of time and that time could not be extended pursuant to s 477(1) of the Act. 18 I am unable to perceive any error of law in that second conclusion. 19 It followed, in my view, therefore that his Honour was correct to dismiss the application. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

application for leave to appeal dismissal of appeal by federal magistrate for non-attendance upon delivery of medical certificate but no further communication further finding by federal magistrate that time could not be extended so that appeal was not arguable delivery of further medical certificate before a hearing of application no further communication prearranged communication by mobile phone denied applicants on notice of effect of delivery of certificate without further communication hearing continued application for leave dismissed migration

Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67. ... Of course I do not deny for a moment that there are cases in which ... notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted. Their proceedings are not judicial proceedings .... They are not even quasi-judicial, for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings ... They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial, but only administrative ... The inspectors can obtain information in any way they think best, but before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice. I take it to be axiomatic that the inspectors must not use the evidence of a witness so as to make it the basis of an adverse finding unless they give the party affected sufficient information to enable him to deal with it. But I think this also is going too far. This sort of thing should be left to the discretion of the inspectors. They must be masters of their own procedure. They should be subject to no rules save this: they must be fair. This being done, they should make their report with courage and frankness, keeping nothing back. The public interest demands it. It is: what does the duty to act fairly require in the circumstances of the particular case? To fulfil that duty, it was, ... encumbent upon the Tribunal to make it known in plain terms to the appellants that the Tribunal considered that such a serious adverse finding [that two letters which were of critical importance to the outcome of the appellants' claims had been fabricated] was open. In adversarial proceedings the rule in Browne v Dunn ... would require a party who sought such a finding against an opponent to put that possibility to the opponent in cross-examination. Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Browne v Dunn required that the Tribunal, before making a finding of dishonesty that would be destructive of the appellants' case, to give the appellants the opportunity to address that issue in their evidence and in their submissions. Where the decision maker intends to reject an application for some reason which is personal to the appellant, for example, the appellant's age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as to afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary ... . Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward. It was suggested that her detention and rape was a central part of her claim. It was further suggested that the Tribunal did not deal properly with her claim and that this constituted a breach of procedural fairness. In their reasons for judgment Gummow and Hayne JJ observed that the applicant knew that her claims about her detention and rape might not be accepted. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. 13 What was said by the Full Court in WACO was applied by Hill J in NAQZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 662 at [79]. Conti J pointed out that the appellant in SZBDM had made certain claims in an inquisitorial setting in relation to which the Tribunal member was required to be satisfied as to their existence. That the Tribunal might not be so satisfied if it found those claims to be vague or overly general was not comparable to the dispute over the authenticity of the documents in WACO . Where a complaint is made about the failure of a questioner to put to a person giving oral answers a particular question, it is natural for a lawyer's mind to turn to the rule in Browne v Dunn. In essence, and subject to numerous qualifications and exceptions, that rule requires the cross-examiner of a witness in adversarial litigation to put to that witness the nature of the case on which the cross-examiner's client proposes to rely in contradiction of that witness. Further, as was emphasised in Minister for Immigration and Ethnic Affairs v Wu Shan Liang, administrative decision-making is of a different nature from decisions to be made on civil litigation conducted under common law procedures. There, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have considered it in their respective interests to adduce at trial. Those proceedings are not adversarial, but inquisitorial; the tribunal is not in the position of a contradictor of the case being advanced by the applicant. The tribunal member conducting the inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. The tribunal member has no "client", and has no "case" to put against the applicant. Cross-examiners must not only comply with Browne v Dunn by putting their client's cases to the witnesses; if they want to be as sure as possible of success, they have to damage the testimony of the witnesses by means which are sometimes confrontational and aggressive, namely means of a kind which an inquisitorial tribunal member could not employ without running a risk of bias being inferred. Here, on the other hand, it was for the prosecutrix to advance whatever evidence or argument she wished to advance, and for the tribunal to decide whether her claim had been made out; it was not part of the function of the tribunal to seek to damage the credibility of the prosecutrix's story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which the applicant chooses not to embark on. The grant of liberty to file written submissions afforded another opportunity to do this, and the prosecutrix took advantage of it. There was no relevant failure on the part of the tribunal member. 20 In determining the Appellant's application for review by the Tribunal, the Tribunal was obliged to have regard to ss 65(1) and (36)(2) of the Migration Act 1958 (Cth) ('the Act'). Accordingly, the issue for the Tribunal, in relation to the Appellant in the present case, was to decide whether owing to well-founded fear of being persecuted for reasons of political opinion, he was outside Bangladesh, the country of his nationality, and, owing to such fear, was unwilling to avail himself of the protection of Bangladesh. 23 No occasion will arise for the Tribunal to invite further submissions or further information from an Applicant before it, if it is not relevantly satisfied because of some or all of the information provided to it by that Applicant (see Miah at [97]; see also Palme at [21]). Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. ( University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 483; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 8. In Metwally his Counsel sought to argue on appeal that the Racial Discrimination Act 1975 (Cth) was unconstitutional in circumstances where his argument at first instance had proceeded upon the premise that the Act was valid. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied ( Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497; 62 ALJR 209 at 210; Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 284). 26 The power of the Court to order the amendment of documents is extensive. Whilst applications for amendment should be made as early as possible, the power to permit amendments may be exercised at any stage in the proceedings. The ultimate consideration is what is in interests of justice. Leave to amend should not be granted where the party seeking the amendment is acting otherwise than in good faith, where the amendment would be plainly futile or where injustice to the other party could not be adequately compensated. 28 Circumstances in which it would be appropriate to decline relief to an applicant would include circumstances where such an applicant has been guilty of unwarrantable delay, has acquiesced in the invalidity of which he now complains or has waived it (see AALA at [56] and [57]). In such circumstances the issue for the Tribunal will be to consider whether any well-founded fear of persecution is one which would apply throughout the relevant country. If not, it would remain for the Tribunal to determine whether relocation to another part of the same country would be reasonable. If, say, an elderly parent had a well-founded fear of persecution for reason of religion in one part of a particular country, which would not be the case were such a person to live in another part of the same country, the Tribunal could not deny the person refugee status if, by virtue of considerations such as age, health, language, or financial or other dependence on other family members, relocation was not reasonable. Reasonableness must, of necessity, be judged according to the circumstances of each individual case. Relevant considerations would not include preservation of an opportunity to pursue a particular career path, to live an affluent lifestyle or avoid some measure of hardship. He arrived in Australia on 17 January 1993 travelling on a Bangladeshi passport with a class 670 Australian entry visa. 31 On 1 September 1993 he attended an interview with a delegate of the then Minister for Immigration, Local Government and Ethnic Affairs who on 27 October 1993 determined that the Appellant's application for refugee status should be refused. I joined the Natun Bangha Shatra Samaz (NBSS), the student wing of the Jattiya Party, in my first year at university. Soon after, I was elected to the office of General Secretary, a position that was second only to the President, whose name was Shadahad Hossain. The aim of the NBSS was to organise support for the incumbent Ershad government. This involved waging campaigns against other political parties such as the Bangladeshi Nationalist Party (BNP) and the Awami League. The campaign against Ershad was marked by violence against the Jattiya party and its members. My leg was fractured during one of the arrests. During the election campaign before the February 1991 elections, many of his supporters, especially those in the student branch, were vilified. To escape this situation, I fled to Cyprus, despite the fact that I had not completed my law studies. There are two cases against me pending in Dhaka. Upon return, he was arrested at Dhaka airport and subsequently beaten severely. I maintain that my position has deteriorated since I departed and thus I come under the category of "refugee sur place". He was admitted in Dacca University in 1984-1985 in the Faculty of Law. It was a four year course, and should have finished in 1988, but because of the political chaos it did not finish until 1990. He did his final examinations in March or April 1990, and in September he applied for a passport. He went to Cyprus, as a student, on 2/2/91 and studied for one semester. In about October 1991, he found out that he could still rejoin his law year to do his masters, so he returned to Bangladesh. He was sitting for his final examinations in April and May 1992, but he could not complete his examinations because his department could not guarantee his security. He left Bangladesh in May 1992, flying to Thailand and then back to Cyprus where he resumed his studies until December 1992. He had to return to Bangladesh again at that time to get his visa, but he only stayed a month or so. There was an election in 1983-4, after which he was the democratically elected leader. The applicant responded that the party was formed after the election, very slowly. He said he did not know exactly how. In September 1985, the National Front was created, and in January 1986, the five pro-government parties amalgamated to form the Jattiya Party. The applicant responded that he only knew about the Student Wing. The applicant joined at the end of 1985. For the most part, the Student Wing carried out the orders of the Party itself, liaising through a student adviser in the Student Section of the Party. Their main activities were processions and meetings. At the time he was General-secretary, the Student Wing was not very strong. The Student Wings of the rival political parties, the Bangladeshi National Party (BNP) and the Awami League, were very strong at that time. These two parties together opposed the Jattiya Party. The applicant responded that he was not sure about the formation of the Jattiya Party. The applicant responded that it was officially abolished in 1988 but it became inactive in Dhaka University in 1986. His leg was broken. He could not stay in the Hall because his leg was broken and the people who had attacked him were still after him. He went to stay with some friends in the Medical Faculty, one of whom was a doctor. He was not much involved in politics at that time. He managed to stay out of trouble because of his friendship with one of the main leaders of the BNP Student Union, whose name was Ovee. He knew Ovee because they came from the same district. The applicant was then with Ovee and Neru. The situation was very bad. Ershad fell on 6/12/90. This case has not been resolved. The penalty for possession of arms is life imprisonment in Bangladesh. For this reason he did not have any further problems during this turbulent period. Then he left for Cyprus in February 1991. This took place outside Ruchiah Hall and the International Language Institute. Two people were killed. Six people were blamed; Ovee, the applicant and four others. Ovee was sentenced for ten years and is now in jail. The others are also in jail. The applicant said he is not in jail because he left the country. Ovee and Neru had connections with the Hills people and with people in India and Burma. He replied that he only remained one month so he could get his visa. He had a friend at the airport who helped him to get in and out of the country. He stayed at the house of a friend. The applicant said his enemies are still moving around Dhaka University. They could easily avoid this by staying out of politics. He claimed he was under government orders during that period and that is how he got involved. The applicant responded that it was all based on his being the General-secretary of the Student Wing. The applicant responded that his case has happened because of the fall of Ershad. The applicant responded that at that time Ershad was in power. Although the students attacked him, the administrative board were helpful to him. But now he has enemies and Ershad is not in power. Moreover, information from our embassy in Dhaka is that the Jattiya party is a recognised political party in Bangladesh and has 35 members in the parliament and that they know several prominent members of the party who are leading normal lives. He is in jail. As far as the 35 seats are concerned, they were mainly won by people who were prominent or rich in their own area, and they won them for that reason, not because of being members of the party. Moreover, one MP can be elected for 5 sections, so even while Ershad was in jail he himself won 5 positions. Thus although the Jattiya Party holds 35 seats they only have 30 people in the parliament. 36 On 2 December 1993 Adrian Joel & Co, Immigration --- Permanent Residence Solicitors and Consultants, wrote on behalf of the Appellant to the Tribunal providing additional documents in support of the Appellant's claims for refugee status. Amongst other things, the letter commented on the record of the delegate's decision. The solicitors' letter foreshadowed that the Appellant would seek to obtain further material from Bangladesh in support of his claim of 'a well-founded fear of persecution should he be compelled to return to Bangladesh'. By his own act the Appellant directed the attention of the Tribunal to the Minister's delegate's record of her decision. By the time [SZDSI] had his graduation and got admitted in the Master's programm of the Dept. of Law, of the University of Dhaka. For a good many times he has been assaulted physically and had to taken to hospital. He was attacked in the hospital, as well. It is quite plausible that the authority of the University of Dhaka and the police forces had been proved, for a good many times, incapable of giving him the security to continue his education at Dhaka University. Having no other way [SZDSI] had to scape (sic) from Bangladesh to Cyprus. At the time of trial examination he came back to Bangladesh and made his all efforts to appear at the final examination of LL.M. But he was attacked by some unidentified terrorist at the examination hall, even despite all co-operation of the Department. He was suggested to leave the country to save his life having the examination finalised not yet. Terrorists still threaten me to provide them the whereabouts of [SZDSI]. Accordingly he was afforded an opportunity to give oral evidence before the Tribunal. On 31 May 1995 a hearing took place at which the Appellant gave evidence. It lasted for almost two hours. 39 On the day of the hearing additional documentary material was submitted by the Appellant to the Tribunal. 40 Before the Tribunal the Appellant was assisted by an interpreter. 41 Evidence was also given in support of the Appellant's application by another witness who was said to be a fellow student of the Appellant at Dhaka University. When the witness was giving evidence to the Tribunal, the Tribunal member put a question to the Appellant (referred to in the transcript as the Applicant) upon which he also invited the witness to comment. That is he was --- he was the leader of the country and he had the political power and you were associated with a student wing of that party. Ershad himself is now in prison. So if the aim, as it were, of the opposition parties like BNP has now succeeded because they've toppled Ershad what would be your concern about returning now to Bangladesh? They couldn't forget that hate to us. Those people who suffered at Ershad's hand and the student wing of Ershad so they're still carrying on that hate, hatred. So I felt insecure and as a result I couldn't appear in the final exam and the department, the faculty couldn't give me enough security so that I can appear in exam. I mean what would be the risk to you of that? They chased me and they identified me. I mean you're a known identity in the university because you were a political activist. You're part of an organisation that obviously was disliked intensely and therefore I can understand yes there would be political enemies of yours amongst the student population but my question is if you were to go back to Bangladesh and you were to go to say a different part of the country, one that perhaps not even to Dhaka, somewhere else and just to settle there and to live there, then what would be the risk to you of your political enemies doing anything to you? Even I can't go back to my country district region because everybody knows me over there. Why are you limited to two parts of the country only? England is the ... difference. So this guy, I predicted before, come from middle class. The middle class is dependent on land only. So as educated who completed the Batchelor of Law Honours, he has no licence, he try to get the licence but he cannot, he could not so he don't have licence so if he go to Bangladesh he need more three years to get the licence first. So these two years, who will pay the money, his father or he? He will not get a job. So he has to live in Dhaka for earnings and earnings and practice because the Dhaka areas court he knows, the people he knows and his clients, most of clients will come in Dhaka area in that zone. So these two places are not safe for [SZDSI] . These two places, the people know him because those who are the killers and Mustan in our own language, called Mustan, the Mustan's is coming from different, say Matraville, say Parramatta, say North Sydney, these sort of suburbs in Dhaka city, there is 100, more than 100 suburbs. All suburbs got own kind of boy who hold the territory, not like in Australia. They got if they say tomorrow got a strike, oh the suburb got a strike, they very powerful boy. That sort of boys knew [SZDSI] so he --- he feared that if I go in Dhaka city I'll be in ... trouble in Dhaka and local area in Barisal I got trouble in there and without that I can live in say Chittagong, I can live in ... but no food. No food, how will I survive there. I mean people come to a new country. I mean if you come to Australia, even if you're qualified as a doctor or a lawyer you have to requalify because to requalify as a doctor you have to sit for an exam which the Medical Association sets and they won't let you just practice even if you have full qualifications and you've worked as a doctor for 30 years and so people, they do other things, they're cleaners or they drive taxis or they do all kinds of things. I don't know anybody else over there. It is not possible. Say that people say, I said Asho, they say Asha, so different type of language they speak so here every day if a newcomer come in Australia in Sydney, say he's a ... or he's a barrister or solicitor from other country, say he go to Hannan Printing Press, say I'm looking for a job, how long, 10 years, five years or two years. He looks good, English good, okay come on, process worker, start a job but the country not that way. Without security, I don't know you, I cannot give you job so there is ... of few things. In industrial area he cannot do that job industrial area, say there is a jute mill, jute mills, lot of I mean one years or two years no vacancy because all the related people, say I working there I'll bring my nephew, niece, I'll bring my uncle, I'll bring, these sort of things happen in nearly five or six years which I know so there he fears that if he goes back to the other parts of the country he's unable to maintain himself and that will be the death as well as the threat. These things will all I mean come, he live in kumla, oh that bloody boy come Dhaka one day. So that will be easy to punish, he fear that. Because we got a jealous .. he is the son of a little farmer, lot of farmers like this in his village. When he come from Sydney, oh he back to Sydney you come to practice here. So his sheer existence, oh okay, before he was in Ershad power, Ershad Party, Ershad was in power and he hold us, I mean he got the power with him and he was superior than us. Now his party is ousted, his party not in power so our party in power so we got a chance to harass him. So that sort of jealousy throughout every, every village and he is scared that sort of punishment. Say he was on our side five years, so one villagers is a wicked man so his land, is fathers' land is beside that so he tried to stop his politics, okay he will be very quiet and innocent in this area. Yesterday, say my area this year I find in papers nearly 20 ... in every village, 20 ... brought their life, 10 ... and midnight 12 ... . So one martyrs happen in the village, he was sleeping in that home, in his home and that rival, before he was rival, [SZDSI's] family so that ... happens in midnight. Oh go to that house, hey how many of the accused person, 20, put another man number three. What's his name, [SZDSI]. [SZDSI], I saw him. They're making, this is making the ... case. If you fall in the one ... case, the whole nearly 10 years it took ... his life. That's the rivalry, village people and those who are stuck, say I will ... I will ... from the politics, that sort of boys and girls fall in that position in our country. We consider the village, we consider the country side is very peaceful but nowadays it's become more worse than city. If you once time involve in the politics in our country you have, you will think that your life has ruined one way or another way. Your education will be finished, that's I predicted, you boys stop that politics. One way or another way, you have --- you have destroyed your life, you did not complete your education, you did not complete your masters, you did not complete your bar council exam. You did not complete many things which student ... in his student life. It is not possible back my country. It's really quite impossible because they took everything from me, from myself. They've broken my leg, they hit my back, they took my education, they took my everything and still I was trademark over there and they're holding the power so it's quite impossible for me to go back my country. Accordingly, the Tribunal has decided to refuse to grant the Applicant a protection visa. The Tribunal affirms the decision under review, which now has effect as a decision to refuse to grant a protection visa. He felt insecure in Bangladesh and had not been able to complete his final exams. He did not believe that he could re-enrol at Dhaka University. There were still opposition students who were on the campus. If he went back to his home village in Barisal he would face problems because he was known as an Ershad supporter. If he returned he would have to do his exams through the Bar Council in Dhaka. Getting a job would depend on having connections and without these he could not survive. One was from the Chairman of the Department of Law, Dhaka University, Professor Patwary. In this letter, dated 18 November 1993, mention is made of the physical attacks on the Applicant resulting in his hospitalisation. After he returned to Bangladesh from Cyprus to do his exams in the master of law degree, the Applicant was "attacked by some unidentified terrorist at the examination hall. " His personal security was at risk and Professor Patwary states that the Applicant was still being sought by terrorists who wanted to know his whereabouts. He has claimed that he was directly involves (sic) in the NBSS which was the student wing, on campus, of the Jatiya Party. The period of his active engagement in the NBSS, according to what he has stated, was in the period between 1984-86. In that time he has claimed that he was engaged in (sic) number of activities including the organisation of meetings and rallies to bolster support for Ershad, production of student publications and the signing of branch documents. The Tribunal was told that he was the general secretary of the NBSS. The length of time that he was secretary has not been precisely stated but it appears that 1986 was the year of the Applicant's most active involvement. There was one incident in which he was physically assaulted by a group of other students. After that he apparently was more circumspect about his political activities which were pushed aside while he concentrated on his exams. The Applicant's account of his campus life indicates to the Tribunal that he was a relatively low-key member of the JP after 1986, even if he still went to meetings of the Party. As he himself has explained, the degree of influence of the NBSS was waning after 1986 and opposition political groups on campus were more prominent than the NBSS and outweighed it in their combined strength. He told the Tribunal that he reported this incident to the police but that they did not do anything about it. He did not indicate to the Department, at interview, or the Tribunal that he had ever been arrested or detained by the police. Therefore the Tribunal considers that it was not possible for there to be any police assaults on the Applicant in the time that he was living in Bangladesh. Thus between the start of 1987 and the end of 1990 the Applicant was able to concentrate on his law studies, complete his undergraduate degree, and restrict his political activities. He does not suggest that he was under further threat from other student groups in this four year period. It was not until the fall of Ershad, which occurred in November 1990, that he felt his security and safety was at risk. As he has said, this was when he decided to go to Cyprus. After he came to power in March 1982, following a military coup, Ershad initiated an austerity drive and campaigned against corruption and inefficiency. There were a number of officials, police and politicians arrested in 1983. Political decentralisation was pursued in the interests of rural development. This goal and the delay in restoring constitutional government generated opposition from political elites. He was then placed under house arrest, and an acting President was installed, and moves were quickly made to hold general elections. On 27 February 1991 general elections were held which resulted in the BNP winning a small majority. Since then, the BNP has been the ruling Party in Bangladesh. (see: "Bangladesh," The Far East and Australasia, Europa Publications, 1994, pp 109-111 ...). ( See "Bangladesh," Country Reports on Human Rights Practices for 1990, p 1388 ). There were reports of violent clashes on university campuses in 1991 and 1992 and 24 students died and more than 2000 were injured. (See: Amnesty International, Bangladesh: A summary of human rights concerns, AI Index, ASA 13/01/93, p 2). As he explained to the Tribunal, he had spoken to friends who had advised him it was safe to return. The Applicant did enrol and begin (sic) his master of law studies. The circumstances preventing him from completing the final exam in April 1992 are not explained in detail by the Applicant. He has said that he somehow learnt that he would be attacked by political opponents if he went to the exam but he has not indicated why he was likely to be attacked or what had provoked a possible attack. What he has said was that the faculty of law could not guarantee his safety and therefore, he decided not to appear for the exam. But, allowing for the possibility that he was a targe of rival student groups, there is no explanation of what he had done or said to provoke such an attack. The Applicant has referred to this several times but although he claims to have supported one of the leaders, an acquaintance called Ovee, he did not explain clearly what involvement he had. His account at the Tribunal hearing is that when the fighting broke out between Ovee's faction and the rival group led by Mirja Galib, Ovee was directing the fighting using a walkie-talkie. The Applicant claimed he was assisting Ovee but has not said what his own role was. When the police intervened the students scattered. The Applicant said to the Tribunal that he did not know what subsequently happened and he was not charged. On the other hand, he presented a different version of the incident to the Department saying that he escaped sentencing because he left Bangladesh. He also claimed that his case was decided in his absence and that he had been sentenced to ten years in prison. The Applicant has not made a clear presentation of this incident and it is uncertain whether he has ever been charged because of the fight. While the Tribunal is prepared to accept that such a clash did occur it finds that the claims of the Applicant are contradictory on what charges, if any, were brought against him. In addition the role of the Applicant himself in this clash lacks clarity. Although the clash between Ovee and Mirja Galib may have been related to their political rivalry within the BNP, the Applicant has said that it was connected to personal antagonism between the two men. The Applicant appears to have sided with Ovee because they knew one another, were from the same village, and Ovee had befriended the Applicant at one stage. Therefore the Tribunal cannot see that the Applicant's involvement in the incident had any connection to his political activities or his support of the Jatiya Party. The Applicant himself has said that by running away he avoided murder charges. Therefore the issue in this incident is whether he may have been involved in a "non-political" offence not whether he was likely to face persecution because of his Jatiya Party activities. The Tribunal does not consider that the issue of persecution arises in such an incident. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. (See: Office of the United Nations High Commissioner for Refugees, Handbook On Procedures And Criteria For Determining Refugee Status, Geneva, January 1988, para.152, p 36). He has said that these are false charges dating back to 1986 but he has some evidence from his friends that the police have charged him with various offences. The point to note about these charges is that they have never been acted on even though the Applicant was studying in Bangladesh from 1986 until early 1991 when he went to Cyprus. The Applicant has claimed that while Ershad was in power the charges were never pressed against him but, after the fall of Ershad, he (the Applicant) was vulnerable and could be subjected to arrest. The fact is, however, that the Applicant returned from Cyprus in October 1991 and resumed his studies at Dhaka University during 1992. He was never approached by the police and, as he has said himself, while be believed that there were charges against him, he had never seen any document relating to those charges or to a possible arrest. Therefore the Tribunal concludes that the police had no intention of bringing any charges against him. He was able to resume his law studies when he returned to Bangladesh from Cyprus in October 1991. He has claimed that he was facing a personal assault on him in April 1992 when he was due to take his exams. As a result, he did not show up for his exam and failed to complete his master of law degree. But he has not indicated what was the basis for his suspicion that he would be attacked if he went to the exams. Nor has he said who was seeking to attack him. Given the fact that, since the end of 1986, the Applicant had not taken an active role in supporting the Jatiya Party on campus, the Tribunal considers that the chance of him being a target of other student groups to be remote. He has said that the NBSS was inactive from 1986 and was disbanded in 1988. Thus, from 1986 onwards, it had no profile on the Dhaka University campus. There have, according to press reports, been continuing tensions in the political situation in Bangladesh in the past two years. Since February 1991 until April 1996, the BNP has been the ruling party in the country. Elections were held in February 1996 amid calls by the Awami League, allied with the Jatiya Party and other opposition parties, for Prime Minister Begum Khaleda Zia to resign. Although the BNP won 99% of seats in the Parliament, the opposition parties refused to participate, charged the elections with being corrupt and rigged, and waged an anti-government campaign that drew support from civil servants, industrialists and workers. The protest, which had been waged for the past two years, has been characterised by strikes and demonstrations. There have been continuing demands for the BNP to step down and for Zia to resign. Finally the Prime Minister capitulated and agreed in early April, to resign and to hold a fresh general election in May 1996 under a neutral caretaker government. (See: Time Australia , 8 April 1996; The Australian , 29 March 1996; The Sydney Morning Herald , 27 March 1996). There have been reports of street fights by armed rival groups and the arrest and intimidation of opposition leaders up to the time of the resignation of the Prime Minister. According to one report, many believed that the members of the Awami League might try to settle scores with political adversaries after the fall of the Zia government. (See: The Weekend Australian , 30 March 1996). He was part of the student group that supported the Jatiya Party through the NBSS in the period from 1984-86. His involvement in politics after 1986 was greatly reduced. Following the fall of Ershad, there were arrests of a number of his key supporters but, although he feared for his own safety, the Applicant was never arrested or detained. Political rivalries and tensions shifted in the 1990s to the role of the BNP in government and the reports on the situation in Bangladesh from 1994 to the present (in Amnesty International Reports 1994 and 1995; the US Department of State's Country Reports on Human Rights Practices for 1994 ; and recent press coverage such as that cited in the preceding paragraph) do not suggest that former Ershad supporters are the focus of attention by other political parties. It finds, therefore, that he does not have a "well-founded fear" of persecution within the meaning of the Convention and cannot be considered to be a refugee. At that time the Appellant became a party to the Muin v Refugee Review Tribunal & Ors ('Muin') [2002] HCA 30 ; (2002) 190 ALR 601 class action (S36 of 1999) in the High Court of Australia. 49 Pursuant to orders made by Gaudron J on 25 November 2002 in the Muin proceedings a draft order nisi was filed by the Appellant in the High Court of Australia on 29 May 2003 seeking constitutional writ relief in respect of the decision of the Tribunal of 26 April 1996. The grounds upon which relief was sought were that the Tribunal allegedly failed to accord the Appellant procedural fairness. On 22 January 2004 the Appellant, who was again represented by Adrian Joel & Co, Solicitors, discontinued his application for constitutional writ relief in the High Court. That the Tribunal exceeded its jurisdiction, in failing to accord the applicant procedural fairness, as required under section 424A(1) and section 418(g) of the Migration Act 1958 . That a breach of the rules of natural justice occurred in connection with the making of the decision. That the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. That taking an irrelevant consideration into account in the exercise of a power and failing to take a relevant consideration into account in the exercise of a power which involved error of law in Tribunal's decision. Refugee Review Tribunal fell into jurisdictional of error in assessing whether or not the State was able to offer adequate protection to the applicant if he returned. By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or error of law and or lack of procedural fairness. The decision under review was made in breach of the requirements of procedural fairness for reason that the RRT failed to give the Applicant the opportunity to comment on material adverse to his claim. 54 The learned Federal Magistrate before whom the Further Amended Application came for hearing on 25 October 2005 dismissed the application and ordered the Appellant to pay the Respondent Minister's costs in an amount of $6,157. The Applicant's complaint arises out of the Tribunal's finding that the Applicant had not " indicated what was the basis for his suspicion that he would be attacked if he went to the exams. Nor has he said who was seeking to attack him. " The Applicant claims that there are references in the transcript that are inconsistent with that finding. At the hearing before this Court, the Applicant referred to parts of the transcript which he contends show that the Tribunal Member did have evidence for the basis of the Applicant's suspicion that he would be attacked if he went to the exams in 1992 and also evidence of who was attacking him. I mean you're a known identity in the university because you were a political activist. You are part of an organisation that was obviously disliked intensely and therefore I can understand yes there would be political enemies of yours amongst the student population. But my question is if you were to go back to Bangladesh and you were to go to say a different part of the country, one that perhaps not even to Dhaka, somewhere else and just to settle there and to live there, then what would be the risk to you of your political enemies doing anything to you. The Applicant submits that these words by the Tribunal member indicate that the Tribunal accepted that the Applicant had political opponents. However, it is my view that, a fair reading of the transcript, in context, makes it clear that the Tribunal member was referring to the student population and the position of the Applicant in that group. The Tribunal plainly considered in some detail the Applicant's claims relating to the circumstances surrounding his failure to attend the exam based on his fear of attack. It concluded that the Applicant had not indicated what the basis was for his suspicion that he would be attacked if he went to the exams. It also concluded that he had not identified those who would be seeking to attack him. Those findings are in the context of the findings of the Tribunal that, since the end of 1986, the Applicant had not taken an active role in supporting the Jatiya Party on campus and that he had spent time in Cyprus before coming back in April 1992 to commence his Master of Laws exam. Soon after he returned to Dhaka, the clash involving Ovee occurred. However, the Tribunal found that the clash was the result of antagonism between Ovee and another student activist, and any involvement of the Applicant in the incident was not because of any persecution for a Convention related reason. The Tribunal is obliged to identify the claims made by the Applicant and to consider them and make findings. Based on those findings the Tribunal is obliged to apply the relevant law in considering whether or not it is satisfied that, pursuant to ss.36 and 65 of the Act, the Applicant has met the necessary criteria to be entitled to a protection visa by reason of being a refugee. What was critical to the finding of the Tribunal, was that the Tribunal did not accept that the Applicant would be directly affected as a result of his early political history, if he were to return to Bangladesh, given that his support of the Jatiya Party through the NBSS had been greatly reduced after 1986 and that the independent country information before the Tribunal did not suggest that former Ershed supporters are the focus of attention by other political parties. The Tribunal found that the Applicant would not face a real chance of serious harm if he were to return to Bangladesh as a result of his political affiliation with the Jatiya Party whilst attending Dhaka University in the later half of the 1980's and early 1990's. The Applicant, through his Counsel, conceded that wrong findings of fact by the Tribunal do not necessarily amount to jurisdictional error. However, a fair reading of the decision shows that the Tribunal indeed considered the claims of the Applicant in relation to his concern about the exams, and accepted that the Applicant was fearful and may have suffered attacks in the past because of his support of Ershed and as a member of NBSS. The Tribunal did not accept that the Applicant's claim of fear from political opponents at the time of his exams was well founded. The Applicant does not specify the basis for his suspicion other than to assert that he feared his political opponents. The Tribunal was not satisfied as to why the opponents would still be interested in him. It is for the Applicant to satisfy the Tribunal that the criteria in ss.36 and 65 of the Act are met. It was open to the Tribunal, on the material before it, to make the findings of facts it did. Indeed, I am not persuaded that the findings of fact it made in respect of the incident surrounding the exams were wrong, let alone whether such an error was capable of amounting to jurisdictional error. The Tribunal decision is not to be read with an eye keenly attuned to error, rather, it is to be given a fair reading taken as a whole. ( Minster for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] ). Given that grounds 2, 3 and 4 are all based on the same particular, and having regard to the findings in these reasons with respect to that particular, grounds 2, 3 and 4 are not made out. The applicant was deprived of receiving procedural fairness as the Tribunal was failed to consider the relevant issues. The Honourable trial judge erred in considering this issue. The Tribunal was influenced by the Country information and made a decision without applying the law and the facts before it. The Applicant was not provided an opportunity to comment, the materials which the Tribunal relied on its decision. The Honourable trial judge did not make any comments in relation to this issue. The Applicant was failed to appear the final examination of the LL.M degree at the University of Dhaka and it was supported by the Law Department at the Dhaka University was devalued by the Tribunal without any basis. This constituted an error jurisdictionally. That notice of appeal identified totally different grounds from those that had been set out in the Notice of Appeal of 14 December 2005. Her Honour erred in finding "the decision of the Tribunal is a privative clause decision" in circumstances where the second respondent committed a jurisdictional error of law by failing to afford the Appellant common law procedural fairness. In affirming the delegate's decision the second respondent rejected the possibility of any police assault on the Appellant by reason of his failure to "indicate to the Department, at interview, or the Tribunal that he had ever been arrested or detained by the police". In affirming the delegate's decision the second respondent found the "claims of the Applicant are contradictory on what charges, if any, were brought against him" by comparing the version given to the Department with that given to the Tribunal. Her Honour also erred in finding "the decision of the Tribunal is a privative clause decision" in circumstances where the second respondent committed a jurisdictional error of law by failing to conduct a review of the delegate's decision in accordance with the Migration Act 1958 (the "Act") --- viz., by failing to observe the mandatory requirements of section 424A of the Act. In reaching her conclusion about the reviewability of the Tribunal's decision her Honour stated that the "Tribunal noted that the Applicant gave a different version of the incident" in March/April 1992 and therefore "due to the contradictory nature of the Applicant's claims in respect of the consequences, the Tribunal was not prepared to accept the Applicant's evidence of his role in the clash and the consequences". The Second Respondent also drew adverse inferences about the Appellant's claim of being arrested or detained by the police by reason of his failure to "indicate to the Department, at interview, or the Tribunal that he had ever been arrested or detained by police". Her Honour also erred in finding "the decision of the Tribunal is a privative clause decision" in circumstances where the second respondent committed a jurisdictional error of law by failing to consider all of the integers of Appellant's claim. In response to the Tribunal's questioning about the risk of persecution upon refoulment, the Appellant claimed that it would be very difficult for him to get a job without connections. While the Appellant's claim in this regard was recorded by the Tribunal there was no finding made on the point. Her Honour further erred in finding "the decision of the Tribunal is a privative clause decision" in circumstances where the second respondent committed a jurisdictional error of law by misconstruing the meaning of persecution in circumstances where it failed to make conclusions about the causal connection between the harm experienced and Convention grounds. The Tribunal failed to turn its mind to whether the Appellant's claim of limited employment opportunities by reason of his previous political affiliation and the current political environment constituted Convention based persecution. The Tribunal accepted the Appellant was involved in an incident in April 1992 involving a clash between Ovee and Mirja Galib which "may have been related to their political rivalry within the BNP" (AB 216.1) but went on to find that the Appellant was involved in a "non-political offence". 58 The appeal was argued by reference to the original Notice of Appeal and the Further Amended Notice of Appeal, the decision as to whether or not the Appellant should be permitted to rely upon the Further Amended Notice of Appeal being reserved. 59 The Appellant sought to rely upon paragraphs 1 and 3 of the original Notice of Appeal, submitting that there had been a denial of procedural fairness. In respect of the Amended Notice of Appeal the Appellant abandoned the proposed ground 2 and pressed ground 1 and also grounds 3 -4. 60 In my opinion, the appeal should be dismissed. 61 Firstly, the proposed amendment to the Notice of Appeal should be disallowed. Whilst a consideration of the need for further evidence and consequential prejudice does not arise, nevertheless ground 1 in the Further Amended Application, the procedural fairness ground, had been expressly abandoned by the Appellant through his then counsel before the learned Federal Magistrate. The other grounds which have been pressed in the proposed 'Further Amended Notice of Appeal', grounds 3 and 4, were not raised before her Honour. 62 For the same reasons, the Appellant ought not to be permitted to rely upon grounds 1 and 3 in the original Notice of Appeal filed 14 December 2005. These grounds simply assert that the Appellant had been denied procedural fairness by the Tribunal. This case had been abandoned before the learned Federal Magistrate. 63 Secondly, even if jurisdictional error on the part of the Tribunal were now established, no satisfactory explanation has been provided of the Appellant's delay in challenging the decision of the Tribunal. I consider the delay of over 1,500 days on the part of the Appellant to amount to unwarrantable delay within the meaning of the above principles (see [27] --- [28]). In the exercise of my discretion, I would refuse relief to the Appellant in any event. 64 Thirdly, the Tribunal did not deny the Appellant procedural fairness, fail to properly consider the risk of persecution were the Appellant to return to Bangladesh or fail to consider whether any fear of persecution the Appellant may have had was causally connected to his political opinion. 65 In its reasons, the Tribunal referred to three political parties operating in Bangladesh --- Ershad's Jatiya Party, of which the Appellant claimed to be a member, the BNP and the Awami League. The student branch of the Jatiya Party, headquartered at Dhaka University, was known as Natun Banga Shatra Samaz (NBSS) and the Appellant claimed to be its general secretary. The student branch of the BNP was the Chattra Dal. Two members of that body were Ovee and Mirja Galib. They were leaders of different factions within Chattra Dal. According to the Appellant, Ovee had been secretary of internal affairs in the Chattra Dal. He was expelled from Chattra Dal in 1989. There were hostilities between Ovee's faction and Mirja Galib's faction. The Appellant happened to be a friend of Ovee, notwithstanding that their allegiances were to different political parties. Ovee came from the same area as the Appellant and their families were known to one another. The hostilities between Ovee's faction and Mirja Galib's faction erupted into a fight in March/April 1992 in which Mirja Galib was killed by members of Ovee's faction. At the time, the Appellant claims he was in the company of Ovee controlling the fighting by means of two way radios (walkie-talkies). 66 It is apparent from what appears above that the Appellant became involved in the affairs of NBSS in 1984 when he was a first year university student at Dhaka University. He maintained an active involvement in its affairs until 1986. From 1986 the influence of NBSS began to wane and in 1988 it was disbanded. The Appellant was physically assaulted by members of an opposing student group in 1986. He was struck with a hockey stick and sustained a broken leg which led to a period of hospitalisation. Following this incident, the Appellant took a less visible role in politics on the University campus and in the four year period from 1987 to 1990 he concentrated on his legal studies. He claimed that he remained a supporter of the Jatiya Party even though he had no on-campus involvement. 67 On or about 6 December 1990 Ershad was toppled, resigning after massive strikes and violent demonstrations throughout Bangladesh. 68 Notwithstanding his low political profile in the preceding four years, the Appellant became fearful for his own security when Ershad fell. In February 1991 he proceeded to flee to Cyprus. Nonetheless, in October 1991 he returned to Bangladesh to commence a Master of Laws at the University of Dhaka. 69 The Appellant did not sit for his final exams on 16 April 1992 and in May 1992, after a period of seven or eight months back in Bangladesh, he returned to Cyprus once again. Subsequently, he returned to Bangladesh in December 1992 before departing for Australia in January 1993. I came to know through one of my friends that they will attack me on the next exam day. I approached to my teachers to manage security for me but they couldn't do anything. They couldn't get me out of that. Then I didn't dare to go to the exam and as a result I couldn't appear in the exam and I didn't complete the degree. I did two subjects only. I couldn't appear in the final examination. Due to two subjects I cannot complete my degree from Bangladesh, that's the story for my life. But he was attacked by some unidentified terrorist at the examination hall, even despite all co-operation of the Department. But, allowing for the possibility that he was a target of rival student groups, there is no explanation of what he had done or said to provoke such an attack. The Tribunal was not obliged to prompt and stimulate an elaboration from the Appellant of his case. It was for the Appellant to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim had been made out. While the Tribunal is prepared to accept that such a clash did occur it finds that the claims of the Applicant are contradictory on what charges, if any, were brought against him. In addition the role of the Applicant himself in this clash lacks clarity. 77 Once again it must be observed that it was the Appellant who, through his solicitors, directed the Tribunal's attention to the record of the Minister's delegate's decision. The Appellant cannot contend that significant adverse material had come to the Tribunal's attention from another source. The Appellant was seized of all the relevant material in relation to this issue and it was his responsibility to advance whatever evidence or argument he wished to rely upon. 78 Similar observations may be made in respect of the Tribunal's conclusion that the police had no intention of bringing any charges against the Appellant for possessing firearms back in 1986. Had the Appellant wished to establish that such charges were outstanding against him, it was for him to advance whatever evidence and argument he wished to rely upon in support of his case and also satisfactorily explain his ability to remain on campus and complete his primary degree in 1987 --- 1990, his ability to return to Bangladesh from Cyprus in October 1991 and remain for a period of seven or eight months thereafter and then his ability to return to Bangladesh again in December 1992 without being arrested. 79 The Appellant was not denied procedural fairness by the Tribunal. At the end of the day the Tribunal was not satisfied that in early 1993 he was outside Bangladesh owing to a well-founded fear of being persecuted for reasons of political opinion. Further, it was not satisfied that he was, owing to a well-founded fear of being persecuted for reasons of political opinion, unwilling, at the time the matter was before the Tribunal, to avail himself of the protection of Bangladesh. He was given a fair opportunity to present his case and make submissions on the question of whether it should have been appropriately satisfied on those matters. Ground of appeal 1 in the Further Amended Notice of Appeal would fail even if the Appellant were allowed to raise it at this stage. 80 The question of whether or not it was reasonable for the Appellant to relocate to another part of Bangladesh removed from the campus of the University of Dhaka did not arise. The Tribunal did not conclude that the Appellant may be unsafe in Dhaka, but safe in other parts of Bangladesh to which he could relocate, were he to return to Bangladesh. Ground of appeal 3 in the Further Amended Notice of Appeal would fail even if the Appellant were allowed to raise it at this stage. 81 The Tribunal did not consider that the issue of persecution arose in respect of the Appellant's involvement in the fight between Ovee's faction and Mirja Galib's faction. 82 It was never suggested by the Appellant that his involvement in the fight was because of political opinion which he held supportive of Ovee which placed him in conflict with Mirja Galib's faction. The political opinion of the Appellant as a member of the Jatiya Party had nothing whatsoever to do with the fight between the Ovee and Mirja Galib factions. The Tribunal correctly decided that the Appellant's involvement in the fight, such as it was, was for personal reasons, namely his friendship with Ovee. It was never suggested that the Appellant had any political alignment with Ovee. The Appellant was a supporter of the Jatiya Party, and Ovee and Mirja Galib were rivals within or in relation to the BNP. Ground of appeal 4 in the Further Amended Notice of Appeal would fail even if the Appellant were allowed to raise it at this stage. 83 For the foregoing reasons the appeal in this matter should be dismissed with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

duty of the tribunal as an inquisitor to act fairly whether appellant ought to be allowed to rely upon grounds expressly abandoned and not argued below refusal of relief on discretionary grounds unwarrantable delay considerations of reasonableness in respect of possible relocation within country of nationality. migration

The Court has previously made declarations of contravention that reflect these findings: see Cahill v Construction, Forestry, Mining and Energy Union (No 3) [2009] FCA 52. The Court is now concerned with the imposition of penalties under s 49 of the Building and Construction Industry Improvement Act and with the disposition of costs. It may be recovered as a debt. Section 43 of the Building and Construction Industry Improvement Act is a Grade A civil penalty provision. By virtue of s 49(2) of that Act and s 4AA of the Crimes Act 1914 (Cth), the maximum penalty for each contravention of s 43 is, in the case of the Union, $110,000 and, in the case of Mr Mates, $22,000. (2) a penalty of $55,000 on the Union in respect of the contravention on 17 February 2006, such penalty to be paid into the Consolidated Revenue Fund within 30 days of the date the penalty is imposed. (3) a penalty of $70,000 on the Union in respect of the contravention on 21 February 2006, such penalty to be paid into the Consolidated Revenue Fund within 30 days of the date the penalty is imposed. (4) a penalty of $7,500 on Mr Mates in respect of the contravention on 15 February 2006, such penalty to be paid into the Consolidated Revenue Fund within 30 days of the date the penalty is imposed. (5) a penalty of $7,500 on Mr Mates in respect of the contravention on 17 February 2006, such penalty to be paid into the Consolidated Revenue Fund within 30 days of the date the penalty is imposed. (6) a penalty of $9,000 on Mr Mates in respect of the contravention on 21 February 2006, such penalty to be paid into the Consolidated Revenue Fund within 30 days of the date the penalty is imposed. In support of his penalty application, the applicant relied on three additional affidavits, being the affidavit of Anthony John Goss affirmed on 1 April 2009, the affidavit of Murray Gregor sworn on 17 March 2009, and the second affidavit of Karen Anne Stuart affirmed on 27 May 2009. The applicant did not rely on paragraphs [9], [10], [11], [15] and [16] of Mr Gregor's affidavit. The respondents argued for significantly lower penalties. They submitted that the appropriate level of any penalty upon Mr Mates was $2,500 and, upon the Union, $10,000. They relied on the affidavit of Sandra Zhu sworn on 5 May 2009. The respondents also challenged the admissibility of parts of the affidavits of Mr Goss and Mr Gregor. Their objections to admissibility are dealt with hereafter. There was no cross-examination at the hearing as to penalty and costs. There are various considerations that may be relevant in determining an appropriate penalty for a contravention of the Building and Construction Industry Improvement Act . See Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 ; (2008) 177 IR 61 , at 69 [40] per Tracey J and Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (No 2) [1999] FCA 1714 ; (1999) 94 IR 231 at [7] - [8] per Branson J, both of which have been cited with approval. These factors are relevant in this case. In Stuart-Mahoney , Tracey J also included a number of other factors, such as the size of the business enterprise involved; whether senior management was involved in the breaches; whether the party committing the breach had exhibited contrition; whether the party committing the breach had taken corrective action; whether the party committing the breach had cooperated with the enforcement authorities; and the need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements. As appears in the following discussion, some of these factors have some bearing on the appropriate penalties in this case. It is convenient to consider the question of penalties, having regard to the various factors falling for consideration. The following is a summary of what is discussed in greater detail in this earlier judgment. At a meeting on 15 February 2006, Mr Mates and the Union: made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the building site at Mount Street, Heidelberg, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&S officer; and threatened trouble at the Mount Street site and that the project was "not going to happen" if the demands were not met. This conduct was the basis for the Court's ultimate finding that, on 15 February 2006, Mr Mates, in his own right, and the Union, through his conduct that day, breached s 43 of the Building and Construction Industry Improvement Act . This was the first contravention. At a subsequent meeting on 17 February 2006, Mr Mates and the Union: made demands on Mr Goss that Mr Deans, Mr O'Donnell and Ms Singleton be re-employed at the Mount Street site, and that Mr Deans and Mr O'Donnell be appointed as shop stewards and Ms Singleton be appointed as OH&S officer; and threatened that the project would never recommence if these demands were not met. The threats were made with intent to coerce Hardcorp to employ Mr Deans, Mr O'Donnell and Ms Singleton on the Mount Street project and, amongst other things, to allocate to Ms Singleton the responsibilities or duties of OH&S officer at the site. Accordingly, the Court found that, on 17 February 2006, Mr Mates, in his own right, and the Union, through Mr Mates' conduct that day, breached s 43 of the Building and Construction Industry Improvement Act . This was the second contravention. On the morning of 21 February 2006, Mr Mates entered the Mount Street site, found the crane crew and shut down the crane by telling the crew to pack up and leave, which the crew ultimately did. In acting in this way, Mr Mates carried out the threats made on 15 and 17 February 2006 that the Mount Street project would not recommence unless Mr Deans, Mr O'Donnell and Ms Singleton were re-employed and took on their former responsibilities, including that Ms Singleton assumed OH&S responsibilities. Mr Mates and the Union shut down the crane, with the intention of coercing Hardcorp to re-employ Mr Deans, Mr O'Donnell and Ms Singleton at the Mount Street site, and, amongst other things, to have Ms Singleton appointed as OH&S officer on site. On the basis of these findings, the Court ultimately held that, on 21 February 2006, Mr Mates, in his own right, and the Union, through Mr Mates' conduct that day, breached s 43 of the Building and Construction Industry Improvement Act . This was the third contravention. On the 15 and 17 February, with intent to coerce Hardcorp to re-employ his people and allocate OH&S responsibilities to his nominee, Mr Mates was threatening the very existence of the project and at a time when it had barely recommenced. Mr Mates' threats were serious and his conduct on both occasions was patently unlawful. In the absence of any reasonable explanation, it must be inferred that it was done in deliberate disregard of the applicable legislation --- here, the Building and Construction Industry Improvement Act . Particularly serious was Mr Mates' conduct on 21 February 2006, which gave effect to the threats on 15 and 17 February. In sending away the crane as he did, Mr Mates unilaterally and arbitrarily prevented work continuing at the site as planned that day, even though Hardcorp representatives told him that there was an OH&S representative and shop steward on site. Plainly enough, Mr Mates' action was unlawful. There was no explanation for it. I infer that it was done in wilful disregard of the Building and Construction Industry Improvement Act . The respondents contended that Mr Mates' conduct on 15 February 2006 should be considered in context. The fact was, so the respondents submitted, that, in late 2005, Worksafe authorities were proposing to prosecute Melbourne Transit (a related entity) in respect of a workplace death at its Queens Road project. Further, it was to be borne in mind, so the respondents argued, that, on 22 December 2005, Melbourne Transit had retrenched all its employees at Mount Street --- the project being taken over by the newly incorporated entity known as Hardcorp in January 2006. Finally, as the respondents noted, as at 15 February 2006, there was no shop steward or OH&S representative at Mount Street. In relation to Mr Mates' conduct of 17 February 2006, the respondents noted that, unusually, the appointment of the OH&S representative on 16 February 2006 was by "agreement between management" and that there was no evidence that the respondents were aware of that appointment before or at the 17 February 2006 meeting. The respondents submitted that, as at 21 February 2006, Mr Mates might well have been very suspicious when he was told that Mr Van Senten has been appointed the OH&S representative because he knew nothing about it. The Court should, so the respondents said, draw the inference, which was open, that Mr Mates' claim for the appointment of a shop steward and an OH&S representative was motivated by a genuine concern to ensure a safe worksite. I am unable to accept the respondents' submissions, although I accept that there was no evidence that Mr Mates was aware of the appointment of an OH&S representative before or at the 17 February 2006 meeting. In particulars under paragraph [17] of their Defence, Amended Defence and Further Amended Defence, the respondents had stated that, on 21 February at the site, "Mates raised safety concerns with a crane operator". There was, however, no evidence that Mr Mates raised any concerns about safety at the meetings on 15 and 17 February 2006, as one might have expected if safety had been a genuine motivating concern on Mr Mates' part. In the context explained in my earlier judgment, Mr Mates himself gave no evidence: see Cahill v CFMEU (No 3) [2009] FCA 52 at [2] - [6] . The Court has, moreover, found that there was no evidence to support a suggestion that safety concerns motivated Mr Mates' conduct on 21 February 2006: see Cahill v CFMEU (No 3) [2009] FCA 52 at [82] . I note that the respondents affirmed, and the applicant denied, that the period of misconduct was limited and of short duration. In this regard, the circumstances of the contraventions, which are set out above, speak for themselves. I accept, as I must, that, in relation to penalty, each case falls to be considered on its own facts. The applicant referred to evidence that, absent the crane, Hardcorp could not continue with the main construction program. The applicant relied on the affidavit of Mr Goss of 1 April 2009. In this affidavit, Mr Goss stated, amongst other things, that Transit Joint Venture Pty Ltd (another related entity) lost approximately $50,000 on 21 February 2006 and for each subsequent day that Hardcorp could not use the crane on the site. Mr Goss stated that this amount was calculated by reference to labour costs, interest costs, management costs, hire equipment costs and holding costs. Mr Goss also deposed to the cessation of the project, loss of jobs, inability to meet obligations to the bank, and loss of the contract for the project. The respondents objected to the admissibility of most of Mr Goss's affidavit, upon the basis that, save for paragraphs [1] to [3], the remainder was irrelevant to the issues before the Court and it impermissibly sought to re-open the issue of the respondents' responsibility for events on the site after 21 February 2006. The respondents submitted that there was no evidence that their conduct on 21 February 2006 caused the project to come to a standstill. On the contrary, there was evidence that people continued to work on the site and of a commercial vehicle apparently entering the site. The respondents argued that "[t]he applicant's evidence about the operation of the site should be treated with great caution in view of the video (exhibit R7)". The respondents further argued that they could not be held responsible for any loss incurred after 21 February 2006. The respondents argued that the applicant was wrong to attribute to the removal of the crane a flow on effect that resulted in the collapse of the project. The respondents argued that the intervening causes were so significant and substantial that Mr Mates and the Union could not be held responsible for Hardcorp's inability to get a crane after 22 February 2006 and the collapse of the project. By his conduct, Mr Mates brought about the removal of equipment upon which the progress of the project on 21 February 2006 depended. Mr Palmer, a site manager at the time, gave evidence that the crane was booked for the installation of concrete panels forming the walls of the residential units under construction and for lifting steel form work and steel reinforcement onto the third level of the site. The Court previously found that Mr Palmer was a credible witness, who gave his evidence in a measured way. Mr Goss's evidence was consistent in this regard with that of Mr Palmer. Mr Palmer summed up the need for a crane, saying "[w]ithout the crane being present we could not continue with the main construction programme". I accept Mr Palmer's evidence as to the need for the crane. As it happened, Mr Mates' action on 21 February 2006 was compounded by the fact that Hardcorp was unable to secure another crane to work on the site until 2 March 2006: see Cahill v CFMEU (No 3) [2009] FCA 52 at [99] . Plainly enough, this failure significantly affected the progress of the project. There was no productive work which could be done on the Mount Street site at this time because we could not get the crane crew on the Mount Street site. By late February 2006 we had already exhausted every other piece of work that the employees could do on the Mount Street site in the absence of a crane. By this stage we could not get any further progress payments made to us because we could not do any productive work. Again, I accept Mr Palmer's evidence as to the situation at Mount Street as at 3 March 2006. Mr Palmer's evidence allowed for the fact that, notwithstanding there was no crane, employees undertook some work on the site until late February 2006. This is borne out by the video taken on 24 February 2006, to which the respondents referred: see also Cahill v CFMEU (No 3) [2009] FCA 52 at [105] . The effect of his evidence is that, after Mr Mates shut down the crane until late February 2006, there was some limited non-crane dependent work undertaken on the site, but thereafter, no productive work could be undertaken without a crane. Clearly enough, Mr Mates' action was taken at a critical stage in the re-birth of the project, when it would be likely to cause disruption. His action meant that there was no crane to work on site on 21 February 2006. If the crane had not been shut down that day, then the crane might have been available to continue working on site on and after that date. I accept that Mr Mitchell's evidence was to the effect that, the crane was pre-paid for the day only, but, presumably, further payment might have been made that day had all gone according to Hardcorp's plan. The fact is that Mr Mates' action effectively foreclosed these possibilities. Some care must be taken in assessing the effect of Mr Mates' action. It must be borne steadily in mind that the Court has rejected as unproven the applicant's allegations of further contraventions on the respondents' part in respect of conduct after the crane left the site on 21 February 2006. That is, the Court has rejected as unproven the applicant's allegations that: (1) Mr Mates telephoned the Union's offices or a representative of the Union to instruct Mr Hill to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (2) Mr Mates arranged for Mr Tadic and/or Mr Hill to contact Independent Cranes to ensure that the crane left the Mount Street site and did not return: see Cahill v CFMEU (No 3) [2009] FCA 52 [96]. The Court also rejected as unproven the allegation that from 22 February 2006 Mr Mates organised the picket outside the Mount Street site. In evaluating the consequential effect of Mr Mates' action on 21 February 2006, I accept that there was no evidence about the availability on following days of the crane from Independent Cranes. The evidence showed that Mr McMahon was unable to hire a crane when he called crane companies later on 21 February, before the picket formed the next day. Mr McMahon's evidence was that, once the picket formed, he told all the crane companies he called that there was a picket in place. This provided a reason for crane companies not to want to supply a crane to the Mount Street site thereafter. On this analysis, the picket and the failure of the crane companies to provide a crane were key factors for Hardcorp's inability to undertake productive work in the period from 22 February 2006 until 2 March 2006. As the applicant noted, however, but for Mr Mates' action in the morning of 21 February 2006, Mr McMahon would probably not have been looking for a crane later on 21 February 2006 and may not have needed to find a crane in the ensuing period. The conclusion I reach is that there were numerous factors that brought about the ultimate collapse of the project at Mount Street, a number of which were unrelated to Mr Mates. However, Mr Mates' action on 21 February 2006 contributed to the circumstances that brought about the project's demise. Further, Mr Mates' action on 21 February 2006 in shutting down the crane undoubtedly caused loss to Transit Joint Venture, although it is difficult to determine precisely how much. The affidavit of Mr Goss of 1 April 2009 was broadly relevant to the issue of the consequential effect of Mr Mates' conduct and therefore admissible. I would not attach much weight to paragraphs [5] to [11], however, which consisted of broad assertions, when clearly a more precise explanation was called for and, presumably, available. By way of example, as already noted, Mr Goss claimed a loss of $50,000 was incurred on 21 February 2006 made up of various items, including labour costs. It is plain enough, however, that some work was done at the site on 21 February 2006. Holding costs are also included, although it is not apparent how these are calculated or how the crane shut down affected them. It is not, moreover, apparent how interest is quantified and paid. Mr Goss's statements about subsequent losses are equally imprecise and, in any event, are subject to the conclusion expressed at paragraph [37] above. Furthermore, it is to be borne in mind that the Court has already found that Mr Goss was not an entirely reliable witness: see Cahill v CFMEU (No 3) [2009] FCA 52 [30], [55], [104] and [109]. In the end, I conclude that the actual loss suffered by Transit Joint Venture on 21 February 2006 was a good deal less than the claimed $50,000. As Tracey J observed in Stuart-Mahoney 177 IR at 70 [44], "[s]imilar previous conduct demonstrates that the respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter the respondent from re-engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions". Similar conduct which has been found to contravene other legislative provisions will have potential relevance. Conduct engaged in prior to 15 February 2006 (when the first contravention occurred) and for which no contravention was recorded until after 15 February 2006 is not treated as a prior contravention: see Alfred v Walter Construction Group Pty Ltd [2005] FCA 497 at [13] per Branson J. However, similar conduct engaged in prior to 15 February 2006 and for which a contravention was recorded after that date can be taken into account ( Alfred [2005] FCA 497 at [13] ) although will usually be given less weight than a prior contravention as judicially determined: see R v McInerney (1986) 42 SASR 111 at 113 per King CJ and 124 per Cox J. Further, similar conduct subsequently found to have been done after the relevant date (here 15 February 2006) is not irrelevant to the assessment of appropriate penalty. In this case, any previous contraventions by the respondents of s 43 of the Building and Construction Industry Improvement Act will be relevant. The applicant submitted that the Union had previously been found to have contravened s 43 of the Building and Construction Industry Improvement Act in Stuart-Mahoney 177 IR 61. In Stuart-Mahoney 177 IR 61, the respondent Union admitted (on 16 April 2008) that, in October 2005, it had contravened ss 38 and 43 of that Act. On 19 September 2008, the Court made declarations to that effect and imposed penalties. The respondents noted, correctly in my view, that this contravention of s 43 is not properly treated as a prior contravention: the conduct in question preceded the first contravention here (on 15 February 2006) but was not the subject of judicial decision (or admission) until last year. Stuart-Mahoney shows, however, that the Union did in fact engage in similar conduct prior to 15 February 2006 --- a fact that may be taken into account although accorded less significance than if the matter had been dealt with by the Court before 15 February 2006. Further, on 13 March 2009, in Williams v Construction, Forestry, Mining and Energy Union [2009] FCA 223 , Jessup J found that, on 31 July 2006, Mr Mates and the Union had committed two breaches of s 43 of the Building and Construction Industry Improvement Act by organising a stoppage of work on a building site and threatening to organise a further stoppage unless the employer engaged a labourer. On 28 May 2009, Jessup J dealt with the matter of penalties: see Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. (With the consent of the applicant, the respondents advised me that this last-mentioned judgment was the subject of an appeal. ) Plainly enough, Williams is not to be treated as a prior contravention on the part of Mr Mates or the Union since the conduct in question post-dated the 15 February 2006 contravention in this case and had not been the subject of any judicial decision until this year. Always bearing this in mind, the findings of contravention of s 43 of the Building and Construction Industry Improvement Act are not necessarily irrelevant to the assessment of penalty and may be taken into appropriate account. In addition to these matters, the applicant relied on various other decisions as indicative of a prior history on the Union's part. In particular, the applicant argued that the Union had a substantial history of engaging in similar conduct because it had been found to have engaged in unlawful coercion on numerous previous occasions contrary to: A lengthier list of judicially determined contraventions of industrial legislation was set out in exhibit MG 2 to Mr Gregor's affidavit, and, as the respondents noted, included matters that were not properly to be treated as prior contraventions. I would not regard this evidence as inadmissible but the matters mentioned are to be accorded substantially less weight than those contraventions specifically mentioned above and, in some instances, virtually no weight at all. Having considered the matters to which the applicant referred me, I consider that the Union's prior contraventions of s 187AB of the Workplace Relations Act provide slight evidence of relevant history with respect to the conduct with which this case is concerned. Section 187AB(1)(b) of the Workplace Relations Act prohibited (amongst others) an organisation from organising or engaging in, or threatening to organise or engage in, industrial action against an employer with intent to coerce an employer into making payments in relation to a period during which the employee was engaged in industrial action. Instances of prior contraventions of s 187AB are therefore potentially relevant to the present matter, because the provision concerned with coercive behaviour to bring about an outcome against the will of another. However, the circumstances disclosed in Ponzio v B & P Caelli Constructions Pty Ltd [2007] FCAFC 65 ; 158 FCR 543 and Cruse v Multiplex Ltd 172 FCR 279 showed that these two cases concerned situations very different from the present. Both concerned payments for stoppages arising from a death in the industry involving breaches of ss 187AA and 187AB, including s 187AB(1)(b). Cahill v Construction, Forestry, Mining and Energy Union [2008] FCA 495 also concerned contraventions of s 187AB, including s 187AB(1)(b), arising in the context of payments for stoppages on account of safety issues. All three cases involved considerations very different to the present: see Ponzio v B & P Caelli Constructions Pty Ltd 158 FCR at 562 [113]-[116] per Lander J and 576-577 [160]-[166] per Jessup J; Cruse v Multiplex Ltd 172 FCR at 294-296 [42]-[47], 300 [61] per Goldberg and Jessup JJ; and Cahill v Construction, Forestry, Mining and Energy Union [2008] FCA 495 at [38] - [43] per Marshall J. Further, although the conduct in question in all three cases occurred before 15 February 2006, the judicial determination of contraventions was not until some considerable time after that date: see Ponzio v B & P Caelli Constructions Pty Ltd [2006] FCA 1221 , Cruse v Multiplex Ltd [2007] FCA 2015 and Cahill v Construction, Forestry, Mining and Energy Union [2008] FCA 495. Although s 170NC of the Workplace Relations Act is directed to conduct that is different from that involved in this case, I consider that prior contraventions of this provision would also have potential relevance in imposing a penalty in this case. In substance, s 170NC prohibited coercion to agree to make or not to make an industrial instrument; and, as in this case, involve the use of coercion on a person to achieve an outcome against his or her will, in circumstances that the legislature considered should be unlawful. As the applicant noted, there have been cases involving s 170NC that have, in substance, involved judicial findings of similar unlawful conduct by the Union's representatives prior to 15 February 2006: see Alfred v Construction, Forestry, Mining & Energy Union , District Court of New South Wales, 5 March 2004 and Alfred v Walter Construction Group Limited [2005] FCA 497. Although involving different conduct, these two s 170NC cases may be said to demonstrate a similar modus operandi on the Union's part to this case --- in which coercion is used to secure control of employees on building site. I would regard both these prior contraventions as relevant to the imposition of penalties, although I note that in both cases the conduct in question took place in New South Wales, rather than in Victoria. For reasons explained below, this affects the weight I would attach to them. As noted below, the question of weight is an unavoidable one when considering the significance of prior contraventions. Each of the other s 170NC cases relied on by the applicant is in a different class. In A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union 165 IR 94, in reasons for judgment of 13 July 2007, the trial judge recorded that, in October 2003, the Union's then representative "made a number of explicit threats to disrupt the progress of work on the site if an EBA were not entered into" and held that the CFMEU and CFMEU NSW were liable for breach of s 170NC of the Workplace Relations Act : see 165 IR 94 at 114-115 [68] and 116 [72] per Gyles J. This case involved judicial findings post February 2006 of similar unlawful conduct pre 15 February 2006. Moreover, the case involved conduct outside Victoria. These latter considerations lessen the significance as to the Union's modus operandi that might otherwise attach to the findings in the case. There are two Victorian instances of s 170NC contraventions. On 22 August 2008, in Cruse v Construction, Forestry, Mining and Energy Union 175 IR 447, Marshall J held that the Union was vicariously liable for a contravention of s 170NC(1)(a), after it was established that, in May 2005, its representative had told a person coming to work on a site that he had to leave and not return, until he entered into a certified agreement with the Union. The conduct in question was that of a delegate in Victoria. In Martino v Construction, Forestry, Mining and Energy Union , the Magistrates Court of Victoria, on 10 May 2006, found that the Union (through the actions of a site delegate) was liable for conduct contravening s 170NC occurring in October 2004. I note, however, that both these two cases involve judicial determination of contraventions after 15 February 2006, and are not therefore to be treated as prior contraventions, although they may be taken into account in imposing penalties. As noted above, the applicant also relied on contraventions of ss 298P(3) and 298S(2)(b) of the Workplace Relations Act , both protective of freedom of association. Although provisions of a different kind from the present, as in this case, each involved the use of coercion on a person to achieve an outcome against his or her will, in circumstances that the legislature made unlawful. Prior contraventions of these provisions therefore have the potential to assist in fixing penalties in the present case. In Hadgkiss v Blevin [2004] FCA 697 at [154], Conti J held, on 1 June 2004, that the respondents, which included the Union, had, in November 2002, "conducted themselves in a manner principally designed to deny the freedom of [an employee] to withhold from joining the Union" and that the Union had contravened s 298P(3). The contraventions involved threats by a Union representative directed to the employer of 'trouble', if an employee would not become a member of the Union. The conduct in question occurred in New South Wales. In Hamberger v Construction, Forestry, Mining and Energy Union [2000] FCA 1923 , Cooper J, on 22 December 2000, held that the respondents, including the Union, had contravened s 298P(3) of the Workplace Relations Act in early 1999: see, for penalty assessment, [2002] FCA 585. His Honour held that the Union had attempted, through various threats, to get an employer to remove an employee because he had refused to join an industrial association: see also Construction, Forestry, Mining and Energy Union v Hamberger (2003) 125 IR 183 ; [2003] FCAFC 38. The conduct in question occurred in Queensland. Both the s 298P(3) cases were decided before 15 February 2006 and involved unlawful coercion to control employees at a building site although the conduct was in both cases outside Victoria. I would therefore regard these prior contraventions as relevant to the imposition of penalties, although, as indicated below, the fact that they occurred elsewhere affects the weight I would give them. In Alfred v Lanscar 167 IR 320, on 4 July 2007, Buchanan J made declarations that the respondents, including the Union, had contravened s 298S(2)(a) of the Workplace Relations Act on 9 February 2005, by representing to an employer that, to work on a site in the Australian Capital Territory, painters were obliged to join the Union, and advising, encouraging or inciting the employer to refuse to make use of painting services offered by persons who were not members of the Union. Since Alfred v Lanscar was decided after 15 February 2006, it is not properly to be treated as a prior convention and entitled to weight as such. Further, it was concerned with conduct in the Australian Capital Territory. Even though not entitled to the same weight as prior contraventions, the cumulative effect of the judicial findings of similar (mis)conduct post 15 February 2006 is significant. They show that the conduct with which the Court is presently concerned cannot be regarded as a completely isolated instance of contravening conduct entirely uncharacteristic of the Union. As indicated above, there is, however, a further matter to consider in relation to these instances of previous contravening conduct. The respondents argued that prior contraventions of another autonomous division or branch of the Union should not be taken into account. I do not consider that there is any absolute rule to this effect. In support of this proposition, the respondents relied on Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at 390 and Temple v Powell 173 IR 189 at 209 [63]. In Leighton Contractors , the Supreme Court of Western Australia was called to fix a penalty for contravention of s 38 of the Building and Construction Industry Improvement Act . In my view, that is the correct approach. It is not appropriate to consider all contraventions of any industrial legislation by any Branch of the first defendant anywhere in Australia. The first defendant is a very large organisation that operates throughout Australia. Branches, Divisions, officers and representatives of the first defendant are involved in dealings with employers in relation to industrial matters every day. It is inappropriate to take account of the conduct of the first defendant through various Branches, Divisions and officers or representatives that is of a different character than the contravening conduct in questions and are contraventions of different legislation. There is substance in that submission. Whether previous misconduct is relevant to fixing a penalty is a question of logic. In some cases a pattern of conduct across the country may suggest a nationwide plan of action or a national culture of misconduct. In other cases it may appear that a particular branch or geographical region has acted alone in adopting a plan of action or has developed a particular culture. It was also submitted that past conduct cannot operate so as to increase the penalty beyond that which is appropriate to the misconduct in question. That proposition mat be correct, but it should not be taken as implying that past misconduct is irrelevant to the fixing of penalty. Whether or not prior contraventions will be relevant and, if relevant, accorded any and what weight will necessarily depend on the nature and circumstances, as disclosed in the record of the prior contraventions. In this context, if it appeared that a series of prior contraventions were part of any nationwide campaign, then this would plainly militate against an offending union. Plainly too, a union, considered as a single entity, cannot shrug off responsibility for prior contraventions just because they were geographically widespread. I accept that, as the relevant legislation provides, an organisation that organises itself into national and state division or branches is accountable for how its representatives operate, whether at divisional or branch level. This does not precisely answer the point at issue, however, because the place where a prior contravention occurred, the status of the Union representative through whom liability arose, and the nature of the organisation (here, including the structure of the Union) are, just like the date and precise nature of the conduct in question, a part of the circumstances to be considered when the weight to be given a prior contravention falls for determination. Prior contraventions may be indicative of a pattern of misconduct on the Union's part or a culture of disregard for the law. Or the circumstances may indicate that care should be taken in giving too much weight to these possibilities, particularly when it is apparent that the liability of the Union has come about through the actions of a site delegate or other local representative or member who may well be more affected by matters close at hand than any shared national interest, culture or concern. In many cases, these may be matters of impression that are not capable of too close analysis. The respondents pointed out that, under the relevant Union Rules, divisions or branches of divisions have autonomy in important areas: see Rule 27(ii) and (iii) of the National Rules and Rule 46(c) of the Divisional Rules; also Divisional Rules 40(4) (a) and (b) and 42(e). In the context explained above, I consider that this may be a factor material to the overall assessment of the weight to be given any particular case. The fact that another division or branch of the Union was within the Union (by virtue of its constitution) responsible for a prior contravention in another State or Territory may be a factor to be taken into account in determining the extent to which the earlier contravention is in reality a useful indicator of relevant history. Much will depend on the circumstances of the prior offending and the case currently under consideration. Plainly enough, other material factors will include the dates of the prior contraventions and whether the conduct in question was relevantly similar to the contraventions with which the court is concerned. It does not seem to me that it is possible to be dogmatic about the correct approach in all cases. Rather, one can say that, in imposing a penalty, a court must have regard to the offender's record of conduct, and the attitude to compliance with the law that such record disclosed, when considered as a whole. Various other judicial statements have been made concerning the significance of a prior contravention in a different state or territory: see A & L Silvestri v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [13] and Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 at [18] - [19] per Jessup J. Nothing to which I have been referred dissuades me from the view that, whilst prior contraventions in any state and territories may be relevant to fixing the penalty to be imposed on the Union, it will be for the Court in each case to consider the question of weight, having regard to all the relevant circumstances. In summary, the history referred to above shows that the Union, through its representatives at various levels around the country, has a history of engaging in coercive conduct relevantly similar to the kind in question in this case. I would not, however, accord equal weight to all parts of this history, especially having regard to the fact that not all elements of this history are to be treated as prior contraventions and many elements relate to events outside Victoria and also at a level that might be thought more indicative of local than national concern. Further, as the respondents submitted, it must be borne in mind that, from 1999 to date, the Union, whether or not considered from the relevant divisional perspective, had a considerable spread of activities --- from large to small --- all over the country. Until Jessup J's decision in Williams [2009] FCA 223 , Mr Mates had not been found to have contravened s 43 of the Building and Construction Industry Improvement Act or any other industrial legislation. The applicant referred to Duffy v Construction, Forestry, Mining and Energy Union (2008) 178 IR 47, in which, on 28 November 2008, Marshall J found that, in October 2005, the Union had contravened s 38 of the Building and Construction Industry Improvement Act . Although the report of the case indicates that Mr Mates was involved in the events resulting in the contravention finding against the Union, there was no finding of contravention against Mr Mates. Further, for present purposes, I accept that s 38 involves consideration of facts of a different kind to that involved in a s 43 contravention. Jessup J's judgment in Williams [2009] FCA 223 was delivered on 13 March 2009, and involved findings that, on 31 July 2006, Mr Mates and the Union had each committed two breaches of s 43 of the Building and Construction Industry Improvement Act . Whilst these breaches cannot be treated as prior contraventions, they can be taken into account in imposing penalties in this case. I note, of course, that they involve judicial findings made earlier this year in respect of conduct five months after 15 February 2006. These considerations affect the weight to be given Williams in imposing penalties here. Referring to Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 at [11] , the respondents submitted that the events of February 2006 should be seen as one multi-faceted course of conduct, because the Court concluded that the conduct on 21 February 2006 was the carrying out of the threats made on 15 and 17 February 2006. Further, or alternatively, the respondents submitted that the totality principle should apply. The contraventions on 15, 17 and 21 February 2006 had the same purpose, namely, to coerce Hardcorp to re-employ Messrs Deans and O'Donnell and Ms Singleton at the Mount Street site and, amongst other things, to have Ms Singleton appointed as OH&S officer on the Mount Street site. This was the common thread running through the offending conduct of 15, 17 and 21 February 2006. To this extent, the comparison with Hamberger v Construction, Forestry, Mining and Energy Union [2002] FCA 585 is justified. Further, the fact of this common thread should be taken into account in fixing penalties, but, in my view, the contravening conduct is not, for this reason, properly seen as one course of conduct. This is because the conduct comprising each of the contraventions was separate and distinct in time and place, and in the coercion that the Union exerted. The conduct on 15 February 2006 involved demands and threats to cause trouble at the Mount Street site if the demands were not met. The conduct on 17 February 2006 involved similar demands and threats but on a different day and place, and in a different context with different participants in the occasion of the contravention. The conduct on 21 February 2006 involved Mr Mates coming on to the site and shutting down the crane. Therefore, these are three separate and distinct contraventions: compare Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ; (2008) 168 FCR 383 at 396-399 [41] - [55] ; [2008] FCAFC 70 at [41] - [55] per Stone and Buchanan JJ. The totality principle must, however, apply: see Mill v The Queen [1988] HCA 70 ; (1988) 166 CLR 59 at 62-63. Where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. Penalties must be proportionate to the culpability and seriousness of the respondent's contravening conduct and sufficient to mark the seriousness of that conduct. Penalties must also be sufficiently high to deter repetition by the contravener and others who might be tempted to engage in contravening conduct. Deterrence is a primary objective of penalties. I discuss each of these additional matters seriatim before turning to the major issue of deterrence. The first such matter was the size and financial position of the Union. In Stuart-Mahoney 177 IR at 71 [49], Tracey J held that the Union was a very large national organisation. On the basis of Mr Gregor's affidavit, I would reach the same conclusion. Its financial report for the year ending 31 December 2007 stated that, as at 31 December 2007, the Union had 103,850 members and net assets of $382,393. Mr Mates stands in a very different position to the Union. He is an individual employed as a worker on a building site. Of course, to say the Union is a large national organisation is not to deny that the Union is a non-profit-making enterprise, a consideration that has sometimes been taken into account in the Union's favour: see Australian Competition and Consumer Commission v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2004] FCA 517 at [8] per Gray J; Draffin v Construction, Forestry, Mining and Energy Union [2009] FCA 243 at [44] per Marshall J; and Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299 at [20] per Marshall J. It may be borne in mind that, when Gray J referred to this as a consideration, his Honour did so in the context of fixing penalties for breach of a restrictive trade practices provision (s 45D) of the Trade Practices Act. Whilst there may be occasions in which the consideration may be given appreciable weight, I doubt that it would be correct to do so in this case. In any event, I would accept that, as the applicant in effect submitted, if taken into account at all, this factor should not be permitted to defeat deterrence objectives (see below). I have already considered matters of this kind when considering the nature and extent of the unlawful conduct and the consequences of the contravening conduct. In response, the respondents relied on the affidavit of Ms Zhu of 5 May 2009. According to Ms Zhu's affidavit, which was unchallenged, Mr Mates was employed as an "Organiser" in the Victorian Branch of the Construction and General Division of the Union between April 2004 and December 2007 and he had not been employed by the Union since that time. Plainly enough, Mr Mates is not properly described as a "senior organiser" within the Union, as the applicant first suggested. Further, I hesitate to describe him as an experienced organiser in February 2006, when he had been in the role for just less than two years. In the end, I doubt that much turns on this description. It is enough to say that Mr Mates did the contravening acts in his capacity as a Union organiser. He did not occupy any senior management position in the Union. There was in this case no evidence that any senior official or members of the governing bodies of the Union were involved in the contravening conduct. Accordingly, the present case is distinguishable from the situation in Finance Sector Union v Commonwealth Bank of Australia [2005] FCA 1847 ; (2005) 224 ALR 467 , where Merkel J found (at 475 [27]) that CBA acted through senior executives in its contravening conduct. The case is also distinguishable from Stuart-Mahoney 177 IR 61, where (at 71 [51]) Tracey J noted that the contraventions in that case took place with the knowledge and consent of senior Union officials. This is not an aggravating circumstance in this case. The respondents replied (and I accept) that this was not an aggravating circumstance that justified an increase in the level of the penalty: compare BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] FCA 336 at [10] per Kiefel J. The applicant further noted that there was no evidence of any corrective action taken by the Union or Mr Mates in relation to the contraventions. Again this is not an aggravating circumstance that would justify a higher penalty. The applicant submitted that the respondents had chosen not to cooperate with him or the Office of the Australian Building and Construction Commissioner. The applicant further contended that the respondents' lack of cooperation, and failure to make admissions of liability whilst making only limited admissions of facts, necessitated the preparation of a great deal of evidence and led to a lengthy trial. This placed a burden on the limited resources of the Court and the applicant. The applicant further submitted that the respondents' conduct during the proceeding deserved censure. The applicant commented adversely on the respondents' failure to call witnesses after filing and serving witness statements, and the abandonment of their defence (that there was a crane malfunction) on the first day of trial. The applicant claimed "[a] vast amount of work needed to be undertaken ... to respond to [this] Defence". These factors may be relevant to costs (discussed below) but they do not amount to aggravating circumstances justifying a higher penalty than otherwise. This is consistent with the conclusion reached by the Full Court in Rural Press Ltd v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at 285 [166] . In effect, this consideration has previously been considered in connection with the nature and extent of the unlawful conduct. Deterrence, both specific and general, is a basic objective of punishment. In the case of the Union, there is a need for specific deterrence and general deterrence. The need for specific deterrence is underscored by the Union's history of similar conduct (see above) and its continuing involvement in the building and construction industry. There is also a distinct need for general deterrence, which requires a penalty to be set so to mark the law's disapproval of the conduct in question, and to act as a warning to others not to engage in similar conduct. The applicant also submitted that there is also a strong need for specific and general deterrence in respect of Mr Mates. I accept that general deterrence is significant. In relation to specific deterrence, Mr Mates drew attention to the fact that he has not been employed as an organiser for the Union since December 2007 and that the only contraventions in which he has been involved over his twenty years in the building industry occurred during his relatively short period as an organiser. I accept that these are relevant considerations. It was apparently common ground that Mr Mates now works as a shop steward or site delegate for the Union at another construction site. Although, as the applicant pointed out, there remains the possibility that Mr Mates may assume the role of organiser again, I consider that this is merely speculation. Mr Mates' current role is a much more circumscribed one than that of an organiser: see Rule 57 of the Divisional Rules. In the circumstances, there remains little real need for specific deterrence. As the respondents submitted, the proceedings themselves might reasonably be thought to have some deterrent effect in respect of the Union and Mr Mates. It has sometimes been appropriate to recognise this factor in discussing deterrence in an industrial context: see, for example, Lisette Pine v Expoconti Pty Ltd [2005] FCA 1434 per Kenny J, Pine v Casello Constructions Pty Ltd [2005] FCA 1854 at [9] per North J; Ponzio v D and E Air Conditioning Pty Ltd [2005] FCA 964 at [20] , [29]-[30] per North J; and Furlong v Maxim Electrical Services (Aust) Pty Ltd (No 3) [2006] FCA 1705 at [20] per Marshall J. This consideration may be borne in mind here, although I would not accord it great weight. Section 3(1) of the Building and Construction Industry Improvement Act specifically states that the main object of the Act is "to provide an improved workplace relations framework for building work to ensure that building work is carried out fairly, efficiently and productively for the benefit of all building industry participants and for the benefit of the Australian economy as a whole". The imposition of penalties for contraventions of provisions such as s 43 is one way in which this is achieved. As already noted, the contraventions under consideration were clear. Bearing these factors in mind, the need for general deterrence is plain enough, with the result that penalties should be imposed at what has been termed a "meaningful level" to serve as a general deterrence to others who may be disposed to engage in the conduct in question: see Stuart-Mahoney 177 IR 61 at 72 [58], citing Australian Competition and Consumer Commission v IPM Operation and Maintenance Loy Yang Pty Ltd (No 2) [2007] FCA 11 at [66] ; Finance Sector Union v Commonwealth Bank of Australia 224 ALR at 479 [41]; and Australian Competition and Consumer Commission v ABB Transmission & Distribution Ltd [2001] FCA 383 ; [2001] ATPR 41-815 at [13] . It is convenient at this point to consider the respondents' objections to paragraphs [3] to [11] of Mr Gregor's affidavit concerning the reports of the Royal Commission into the Building and Construction Industry, and the Commonwealth Government's response to it, including the passage of relevant legislation and the establishment of the Office of the Australian Building and Construction Commissioner. I would uphold the respondents' objections and, essentially for the reasons advanced by the respondents, I would not admit the challenged paragraphs. The critical document is the Building and Construction Industry Improvement Act , which clearly sets out in s 3 what the Act is intended to achieve. There is no relevant doubt about its meaning that needs clarification. It is sufficient for present purposes to note that the challenged parts of Mr Gregor's affidavit could add relevantly little, if anything, to this and suffer from the disadvantages to which the respondents referred. As already noted (at [5]), the applicant did not rely on paragraphs [9], [10], [11], [15] and [16] of Mr Gregor's affidavit. The applicant submitted that a penalty of $70,000 should be imposed for the contravention on 21 February 2006 (being a total of $180,000). Further, in respect of Mr Mates, the applicant said that the Court should fix a penalty of $7,500 for the contravention on 15 February and $7,500 for the contravention on 17 February 2006. The applicant submitted that $9,000 penalty should be imposed for the contravention on 21 February 2006 (being a total of $24,000). The respondents argued for lower penalties, bearing in mind Stuart-Mahoney 177 IR 61, which they noted involved the imposition of an overtime ban over a period of six days for all employees, in response to the builder's refusal to engage apprentices. The trial judge held that the ban was designed to disrupt work, and senior management of the Union knew of and consented to its imposition. The respondents submitted that, in all the relevant circumstances, the appropriate level of penalty that should be imposed on the Union was $10,000, and on Mr Mates, $2,500. The respondents argued that such a level of penalty was consistent with the fact that what was involved in this case was significantly less serious than the contravening conduct found in Stuart-Mahoney 177 IR 61 (also a s 43 breach). The applicant replied that this case warranted a significantly higher penalty than in Stuart-Mahoney , noting other alleged features of the respective cases. Ultimately, whilst consideration of Stuart-Mahoney is helpful, the fact remains that each case must be considered, having regard to its own facts. Unsurprisingly, Stuart-Mahoney was different from this case in a number of material respects. Much the same must also be said of Williams [2009] FCA 223 and Williams (No 2) [2009] FCA 548. Consideration of them is helpful, but ultimately the factors relevant to the imposition of penalties differ. As noted above, where (as here) penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties in aggregate are just and appropriate to the circumstances of the case. This principle is designed to ensure that the aggregate of penalties imputed is not such as to be oppressive or crushing see: Kelly v Fitzpatrick [2007] FCA 1080 ; (2007) 166 IR 14 at [30] referred to with approval by Buchanan J in Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 at [89] . The orthodox position requires the determination of appropriate penalties for each contravention arising from the same course of conduct. The aggregate figure is then considered to ensure that the penalty is an appropriate response to the conduct in question see: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 ; 145 ALR 36 at 53 and Ponzio at [145] per Jessup J. Neither respondent has expressed any contrition. Generally, the applicant seeks an order that the Union and Mr Mates pay his costs of the proceeding, but he also seeks an order that the respondents pay the applicant's costs thrown away by reason of the amendment contained in the Further Amended Statement of Defence dated 14 July 2008 on an indemnity basis. The applicant seeks this latter order on the basis that the previous pleading and the witness statements filed by the respondents put the applicant to significant cost in preparing material in response. The applicant argued that the respondents would have been aware of this cost, but only chose to amend the Amended Statement of Defence on the first day of the trial and with only one working day's notice to the applicant. The applicant noted that the respondents must have been aware of the real reason for the crane leaving the site, since it was Mr Mates who spoke to the crane crew and demanded that they shut down the crane and leave. The applicant submitted that the Court might infer that the relevant witness statements and Amended Statement of Defence were filed with the respondents' knowledge that the relevant matters contained in them were false. The respondents argued that the costs should be apportioned on the basis that the respondents received 75% of their costs and the applicant received 25% of his costs. The respondents argued that this was a fair reflection of the evidence and measures of success. The respondents noted that the applicant was unsuccessful in two of the three allegations of a s 43 breach by conduct on 21 February 2006. The respondents noted that the applicant failed in his allegation that Mr Mates organised a picket line at the site from 22 February 2006 to 3 March 2006 and in his allegation that there was a breach of s 38 for conduct on and from 21 February 2006. The respondents submitted that, since the applicant had been unsuccessful in only three of his allegations, the costs should be apportioned accordingly. The respondents further argued that the evidence and submissions that resulted in findings of contraventions of s 43 on 15 and 17 February 2006 were brief. The respondents maintained that the evidence with respect to the stoppage of the crane on 21 February 2006 was tendered for the purposes of alleging a contravention of ss 38 and 43 and, as the applicant failed to make out his case on s 38 , the costs of the evidence should be split between the respondents and the applicant. The respondents submitted that the evidence and submissions dealing with matters on and after 21 February 2006 (save for the stopping of the crane) was extensive and, since the applicant failed on this part of his case, the applicant should bear the costs attributable to this part of the case. In response to the applicant's request for indemnity costs thrown away, the respondents maintained that they ought not be punished by an order for costs because they relied on information provided to them by third parties and, in any event, the respondents had abandoned this part of their defence as soon as was reasonably practical. The applicant argued that apportionment was inappropriate, because the conduct and motivations underlying the proven allegations were intertwined with the alleged conduct and motivations said to underlie the unproven allegations so as to make it reasonable and appropriate for the applicant to pursue the unproven allegations. Further, the applicant submitted that the unproven allegations did not result in appreciably extra Court time or expense than would have been necessary to have considered the proven allegations because most of the evidence and Court time was devoted to the contraventions of 15, 17 and 21 February 2006. The applicant added that, in the event that the Court thought it appropriate to depart from the usual rule, then the Court should not deprive the applicant of any more than 25% of his costs (other than his costs thrown away by reason of the Further Amended Statement of Defence). Furthermore, the applicant claimed the costs of the no case submission. The usual practice is that costs follow the event, with the result that the Court will order the recovery of costs by a successful party on a party and party basis. The matter of costs is, however, in the general discretion of the Court, although the discretion must be exercised judicially, that is, in a principled way by reference to the litigation: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [9]-[10]. In some circumstances, the usual rule will be found wanting and success on a portion only of a claim may make it reasonable for the litigant to bear the expense of the portion in which the litigant failed. Sometimes too, an otherwise successful litigant may be ordered to pay the costs of the other party in respect of the issues on which that litigant failed. As Black CJ and French J said in Ruddock v Vadarlis (No 2) 115 FCR 229 at 236 [15], "[u]sually the circumstances in which a successful party is denied all or part of its costs have to do with its conduct of the proceedings". The issues it raised in argument on the appeal were not unreasonably raised. The somewhat complex factual background was a matter which had to be considered in relation to all issues. None of the issues raised can be characterised in terms of the time and work involved as distinct and severable from the other issues to the extent that an apportionment would be warranted. In the present case, the key factor is that the applicant has not acted unreasonably in raising any issues in the context of the facts as they understood them. The applicant was successful in establishing that Mr Mates' conduct on 15, 17 and 21 February 2006 (in relation to the crane) was in contravention of s 43 of the Building and Construction Industry Improvement Act , which necessarily involved a finding as to his coercive intent. It cannot be said that the applicant brought the proceeding improperly. Further, it was not unreasonable on the applicant's part to press the matters that the Court ultimately found unproven. In this context, a simple counting up of the proven allegations against those unproven does not fairly reflect the applicant's success in the proceeding. Nor do the circumstances justify an apportionment of the kind the respondents seek. So far as the law permits and is practicable, however, fairness should govern the disposition of costs: compare Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] per as Finkelstein and Gordon JJ. The critical factor in support of a departure from the usual order as to costs is that the applicant has failed in respect of his allegations concerning events after the crane incident on 21 February 2006 and following, which turned on additional and different evidence to the earlier events. These allegations were that: (1) on 21 February 2006, Mr Mates telephoned the office of the crane company and said that its crew were not to work on the project at Mount Street; (2) on 21 February 2006, Mr Mates telephoned the Union's offices or a representative of the Union and instructed the person he contacted to instruct Maurie Hill (the Union organiser responsible for mobile cranes in Victoria (FEDFA division)) to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (3) on 22 February 2006 and following, Mr Mates organised a picket line at the Mount Street site. The applicant further alleged that the Union and/or Mr Mates had contravened s 38 of the Act in that Mr Mates' alleged conduct on 21 February 2006 and in organising a picket line at the Mount Street site between 22 February 2006 and 3 March 2006 constituted "building industrial action" within the meaning of paragraphs (b) and (c) of the definition in s 36(1) of the Building and Construction Industry Improvement Act . Plainly enough, some significant amount of time and effort was devoted to that part of the applicant's unsuccessful case, although it is difficult to quantify this precisely. In all the circumstances, it would be reasonable to deprive the applicant of a percentage of his trial costs. Having regard to these circumstances, I consider that it would be fair and just to deprive the applicant of 40 per cent of his trial costs. It would be inappropriate to order the applicant to pay any portion of the respondents' costs. The applicant sought the costs of the respondents' earlier no-case submission: see Cahill v Construction, Forestry, Mining and Energy Union (No 2) [2008] FCA 1292. It will be recalled that I rejected the respondents' submission on the first limb of their no-case submission concerning the construction of the definition of "building industrial action" in s 36(1) of the Building and Construction Industry Improvement Act . I declined to rule on the respondents' contention that the applicant's evidence did not make out the alleged contravention for the events after the crane incident on 21 February 2006 and following unless the Union and Mr Mates elected to call no further evidence, which they subsequently did. In the result, I have held that the applicant's allegations about events subsequent to Mr Mates having the crane and crane crew leave the Mount Street site were unproven. In these circumstances, I would make no separate order as to costs in respect of the respondents' no-case submission, but I have had regard to this submission and its outcome in making a more general order as to the disposition of the costs of the proceeding. I reject the applicant's submission that an order for costs thrown away on an indemnity basis ought to be made in respect of the respondents' Further Amended Statement of Defence. The particulars to paragraph [17] of the respondents' Defence originally stated that Mr Mates had raised safety concerns with the crane operator on site and that the crane operator had informed him that, owing to concerns about payment, he had been instructed to leave. Pursuant to an order made on 3 August 2007, the Defence was later amended to include paragraph 17A, which referred to the crane company's concerns about payment and an alleged malfunction of the crane. A Further Amended Statement of Defence was filed on 14 July 2008, being the first day of the trial. The applicant was apparently given one working day's notice of the amendment. This pleading deleted paragraph 17A and the reference in particulars under paragraph [17] to the crane company's concerns about payment. I am in no doubt that the applicant should have the costs thrown away by reason of the amendments made by the Further Amended Statement of Defence filed on 14 July 2008. I am not, however, persuaded that I should make an order as to indemnity costs, as the applicant asks. It is apparent from the pleading that the passages withdrawn by the respondents had a source in third parties. For reasons unknown and presumably sound, the respondents ultimately chose not to rely on these third parties. I do not consider that, by reason of this conduct alone, the respondents should be required to pay costs on an indemnity basis. Parties should not be deterred by awards of indemnity costs from abandoning defences when they discover that, for some legitimate reason, they are not proper to advance. I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

contraventions of s 43 of the building and construction industry improvement act 2005 (cth) amount of penalties to be imposed relevant considerations nature and extent of unlawful conduct consequences of contravening conduct previous similar unlawful conduct, including prior contraventions relevance of previous contravention by another autonomous division of the union contraventions had common purpose but distinct in time, place and coercion exerted relevance of, and weight to be given to, size and financial position and non-profit-making objective of union general and specific deterrence totality principle applicant partially successful in his pleaded case respondents filed further amended defence on first day of trial appropriate costs order applicant entitled to part of his costs to reflect measure of success respondents to pay applicant's costs thrown away by reason of amendment on party-party basis industrial law costs

It has been involved in that project since the late 1990s. The company's profits from the project are taxed under the Petroleum Resource Rent Tax Assessment Act 1987 (Cth) (the PRRTA Act). Woodside Energy says that because of the volatility of oil prices it has an oil price risk management policy under which it enters into hedging transactions with respect to a certain percentage of its anticipated production. In its returns for the years 30 June 2000 to 30 June 2002 inclusive it claimed losses incurred in relation to hedging transactions. The amounts were substantial, well in excess of $100 million for the years 2000 and 2002 and nearly $300 million for the year 2001. 2 The Commissioner of Taxation (the Commissioner) has disallowed hedging losses in respect of the year ended 30 June 2002. Woodside Energy appeals against the Commissioner's decision on the basis that the hedging losses should be deducted from its receipts. It says, inter alia, that they were expenses incurred in relation to the sale of petroleum within the meaning of s 24 of the PRRTA Act. 3 The company seeks, at the hearing of the appeal which is set down for December, to rely upon the evidence of an expert economist and an expert accountant going to the proper treatment of hedging losses. The Commissioner objects to the admissibility of the evidence. For the reasons that follow, I am satisfied that the evidence is admissible as arguably informing the application of certain general terms in the Act by reference to its purpose and accounting and commercial practice. It carries on the business of exploring for petroleum, developing petroleum projects and producing and selling petroleum products. 5 Woodside Energy is, and has at all material times been, a joint venture participant in, and operator of, a petroleum project in the Timor Sea in an area covered by production licences AC/L5 and WA-18-L, which is approximately 550 kilometres north west of Darwin. The area contains what are known as the Laminaria and Corallina sub sea oil fields. Since about 10 June 1999 the company has had a 44.925% interest in the joint venture. The other participants are BHP Petroleum (North West Shelf) Pty Ltd with a 32.6125% interest and Shell Development (Australia) Pty Ltd with a 22.4625% interest. 6 The company says that early in 1996 it commenced preparation of forecasts of the oil volumes expected to be produced and sold from the Laminaria project. The first of these forecasts, which were completed in or about August 1996, were updated and maintained on an ongoing basis as development of the project progressed. Based on these oil production forecasts, it entered into hedging transactions in relation to a portion of its anticipated sales from the project. It says it entered into the transactions to ensure that revenue in respect of the sale of a proportion of the oil produced from the project would not fall in the event of a decline in world oil prices. 7 Woodside Energy's financial accounts for the calendar years ending 31 December 1999 through to 31 December 2002 set out sales revenue derived from the Laminaria project after allowing for losses incurred in each of those years in relation to its hedging transactions. Furthermore, the objective of the oil price risk management (OPRM) hedging policy is to contain the potential for financial loss arising from unfavourable movements in oil prices. The two production licences in which it has an interest are treated by the Commissioner, pursuant to a Ministerial Certificate, as sufficiently related to be regarded as a single petroleum project. The PRRTA Act imposes tax in respect of the taxable profit of a person in the year of tax in relation to a petroleum project. The company did not have a taxable profit for the years ended 30 June 2000 and 2001 in relation to the Laminaria project and no assessment under the Act was issued in either of those years. 11 Woodside Energy lodged a Petroleum Resource Rent Tax Return for the year ended 30 June 2002. An assessment was issued on 26 September 2002 in which the taxable profit was assessed at $429,825,898 and tax assessed at $171,930,359. On 21 November 2002 the company lodged a Notice of Objection to the assessment which, as its public officer indicated in a covering letter, related '... principally to a claim by Woodside Energy Limited ... to deduct expenses incurred on hedges undertaken in relation to sales from the Laminaria project as 'expenses incurred in relation to the sale' under section 24 of the PRRT Act. ' An amended assessment was issued on 24 December 2003. This showed a lower taxable profit figure of $371,202,675 and tax assessed at $148,481,070. 12 In a letter dated 15 October 2004 to Woodside Energy a Deputy Commissioner of Taxation informed the company that claims in its objection dated 21 November 2002 in relation to hedge expenses had been disallowed. Claims in the objection in relation to non-hedge matters were finalised by notices of adjustment for the 2000 and 2001 years of tax and by notice of amended assessment for the 2002 year of tax, all of which were issued on 24 December 2003. Woodside Energy lodged an application in the original jurisdiction of this Court on 10 December 2004 appealing against the Commissioner's decision of 15 October 2004 disallowing its objection dated 21 November 2002 against the Petroleum Resource Rent Tax Assessments issued on 26 September 2002 for the year of income ended 30 June 2002. 13 The appeal against the Commissioner's decision is listed for hearing in the week commencing 11 December 2006. An objection has been taken by the Commissioner to the admissibility of expert evidence relied upon by the company. The evidence objected to is set out in two affidavits, one sworn by Professor Ross Garnaut on 28 March 2006 and the other sworn by Professor Robert Walker on 22 March 2006. The evidence goes generally to the way in which hedging expenses should be treated for the purposes of the PRRTA Act. Broadly speaking the objection to the evidence of Professor Garnaut is that it is evidence of a theoretical character relating to the concept of economic rent which purports to bear upon the proper construction of the PRRTA Act. The objection taken to the evidence of Professor Walker is that it has to do with preferred accounting treatments and is not relevant to the characterisation of hedging expenses in the light of the provisions of the Act. The PRRT Act imposes tax '... in respect of the taxable profit of a person of a year of tax in relation to a petroleum project'. The rate of tax imposed is 40% (s 5). It refers to total receipts of specified kinds whether of a capital or revenue nature. The term relevant for present purposes is 'assessable petroleum receipts'. On a proper construction of the PRRT Act the hedging losses incurred by Woodside Energy in relation to the Laminaria Project in the 2002 PRRT year in the sum $106,399,732 were "expenses payable" by Woodside Energy in relation to sale of a marketable petroleum commodity (being stabilised crude oil) from the Laminaria Project within the meaning of s 24 of the PRRT Act. Alternatively, under s 24 of the PRRT Act the calculation of "consideration receivable" by Woodside in relation to the sale of a marketable petroleum commodity from the Laminaria Project in the 2002 PRRT year required that the hedging losses incurred by Woodside Energy in relation to the Laminaria Project in the 2002 PRRT year be taken into account by deducting such amount from gross receipts. Alternatively, the hedging losses incurred by Woodside Energy in relation to the Laminaria Project in the 2002 PRRT year in the sum of $106,399,732 are to be taken into account in calculating Woodside Energy's class 2 augmented bond rate general expenditure being general project expenditure within the meaning of s 38 of the PRRT Act. Further, the hedging losses incurred in relation to the Laminaria Project in the 2000 PRRT year and the 2001 PRRT year ought to be taken into account in ascertaining Woodside Energy's taxable profit in relation to the Laminaria Project for the 2002 PRRT year. The Commissioner takes issue with each of the alternative contentions. By a letter dated 7 October 2005 he was requested by the solicitors for Woodside Energy to provide his expert opinion in relation to a dispute concerning the appropriate treatment of hedge expenses under the PRRTA Act. He produced a report, responsive to a number of questions put to him by the solicitors. The report was exhibited to his affidavit of 28 March 2006. 20 The questions began by asking for an 'economic perspective' on what is conveyed by the description of a tax as a 'resource rent tax'. Professor Garnaut was asked to identify 'from an economic perspective' the features and objectives of such a tax distinguishing it from royalty or excise regimes. He was asked about the relationship between the term 'economic rent' and the profit of a particular resource project in respect of which resource rent tax is payable. Against the background of those questions there were then five specific questions put relating to the hedging losses claimed by Woodside Energy. On the assumption that PRRT is intended to be a tax on "economic rent", would an economist make allowance for amounts received and expenses incurred on the hedging activities undertaken by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) in measuring the amount upon which PRRT is to be levied in relation to the Laminaria project? Would an economist regard the expenses incurred by Woodside in relation to the hedging transactions described in the Woodside affidavits as expenses payable in relation to the sale of petroleum produced from the Laminaria project? Is there any reason why an economist would treat hedging expenses differently from interest paid in respect of monies borrowed for the purposes of assessing economic rent or the amount upon which to levy PRRT? In your opinion, can the hedge expenses incurred by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) be described from an economic point of view as marginal costs associated with the Laminaria project? You should explain what is meant by the description of a cost as a "marginal cost". If one failed to take into account the hedge expenses incurred by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) in measuring the economic rent or the amount upon which to levy PRRT, what would be the consequences of such a failure in terms of meeting or failing to meet the objectives of a resource rent tax? ' He attached to his statement a paper published in The Economic Journal of June 1975 entitled 'Uncertainty, Risk Aversion and the Taxing of Natural Resource Projects'. He and Professor Clunies Ross also jointly wrote a book on the topic entitled 'Taxation of Mineral Rents' published by Clarendon Press in Oxford in 1983. 22 The substantive part of the statement began with an explanation of the concept of 'mineral rent' in a mining or petroleum project. This term was defined as the excess of total revenue derived from the project over the sum of the supply prices of all capital, labour and other 'sacrificial' inputs necessary to undertake it. By sacrificial inputs Professor Garnaut meant inputs that have value in alternative uses and whose allocation to the mining project involves an opportunity cost of not applying them to those alternative uses. He then described a 'resource rent tax' as one which seeks to tax only the mineral rent and not the inputs necessary to generate it. Such a tax is applied to economic rent because if appropriately designed and applied it will be economically 'neutral'. That is to say, it will not cause decisions to apply labour, capital and other resources to the project that differ in any way from the decisions that would be taken in the absence of taxation. He described the aim of the resource rent tax as the generation of revenue 'without distorting business decisions on the amount or composition of investment or production'. 23 Professor Garnaut went on to say that the resource rent tax is assessed only on the revenue earned in the mineral project that exceeds the total cost of all the inputs essential to production, including the supply price of investments. He compared this system with the royalty which is typically applied to volume or value of production whether or not the project in question is generating revenues in excess of the amount required to cover in full the supply prices of all inputs into production. A resource rent tax does not place a burden on the extraction of minerals or petroleum from parts of the ore body or petroleum field where the extraction costs absorb the whole or nearly the whole of the value of production from that part of the resource. A royalty on the other hand will place some burden on such high cost production even if the costs are nearly equal to the value of production. A resource rent tax will therefore not deter investment in resource deposits which are expected to yield only a small surplus above the costs of all inputs into production. A royalty will deter such investment. An excise, like a royalty, is applied to the value or volume of production. 24 Professor Garnaut described the economic rationale for applying resource rent taxes rather than concessional royalties or excises. The resource rent tax would support the development of all resource deposits for which the expected economic benefit to develop would exceed the economic costs of development. A resource rent tax will support the generation of the maximum amount of economic value that can be generated from mineral resources. He discussed 'economic rent' which he called 'the economist's concept of profit'. He contrasted it with accounting profit or taxable income which are approximations of 'pure profit'. They are constrained by conventions and legal definitions that have emerged from the practical application of the idea of 'profit' over time. He then set out various consequences of applying a resource rent tax, including the immediate deductibility of expenditures on the project and the deduction from income of the full opportunity costs of all capital provided to the project. Revenue for resource rent tax should be defined to include any losses or gains from forward contracts or hedging contracts that are part of the sales process. It is irrelevant conceptually whether the hedging process leads to higher or lower prices than, in the event, would have been achieved from spot market sales. He spoke of resulting distortions to investment and production in the resource industries which would be antithetical to the objectives of the resource rent tax. The solicitors for Woodside Energy posed three questions for his opinion in a letter dated 7 October 2005. From an accounting perspective, if one was to calculate the "profit" of a particular resource project such as the Laminaria project, how would that profit be calculated and in particular, would an accountant make allowance for amounts received and expenses incurred on the hedging activities undertaken by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) in measuring the "profit" generated by the Laminaria project? Would an accountant regard the hedge expenses incurred by Woodside in relation to the Laminaria project (as described in the Woodside affidavits) as expenses payable in relation to the sale of petroleum from the Laminaria project, or are the expenses amounts which ought for accounting purposes to be dealt with upon some other basis (and if so, on what basis)? Are there any circumstances in which an accountant would not regard amounts received and expenses incurred in relation to commodity hedges entered into by a commodity producer as expenses incurred in relation to the sale of the commodity being produced? If so, from an accounting perspective, what are the significant features of the hedging activities undertaken by Woodside (as described in the Woodside affidavits) which cause them, in your opinion, to be regarded as expenses payable in relation to the sale of petroleum from the Laminaria project or as expenses which are not payable in relation to the sale of petroleum from the Laminaria project, as the case may be? He set out a list of assumptions which he had made for the purposes of preparing his report and which it is not necessary to reproduce here. He noted that profit calculations may differ between those adopted for Woodside Energy as an individual entity and those adopted for the Woodside Petroleum Group as a consolidated entity. He referred to a relevant accounting standard, WASB 1006, entitled 'Interests in Joint Venture'. Hence the practices known as 'hedge accounting' involve having regard to the overall 'substance' of several transactions (rather than the 'form' of individual transactions --- here, a hedging deal and contracts for the sale of petroleum products). He noted that Australian accounting standards did not address the accounting treatment of hedging transactions until the issue of AASB 1012 'Foreign Currency Translation' (2000). He discussed AASB 1012 which, as its title suggested, focused upon foreign currency transactions although it also referred to transactions involving financial instruments which incorporate foreign currencies. He referred to the extension of the approach to hedge accounting outlined in AASB 1012 to other types of transactions in two statements issued by the accounting professions Urgent Issues Group (UIG), namely UIG Abstract 32 and UIG Abstract 33 'Hedges of Anticipated Purchases and Sales' (May 2000). He pointed out that UIG 33 sets out the conditions under which transactions entered into for hedge anticipated purchases or sales are to be recorded using 'hedge accounting'. For accounting purposes the gains or losses on hedges would be added to, or deducted from, those sales revenues for reporting purposes. They would certainly be regarded as attributable to the sale of petroleum products in the period sales are made. As Woodside Petroleum Group is a reporting entity, the hedge expenses would properly be regarded as expenses incurred in its petroleum business. If they arose from speculative dealings they would not be attributed to the petroleum business. He went on at some length to explain these propositions. He maintained that the distinction was artificial from an economic or commercial perspective. He explained that proposition. He concluded by acknowledging that the interpretation of whether hedging expenses were incurred or payable in connection with the sale of petroleum products, is a matter for the Court to determine. Nevertheless he expressed his opinion that in a commercial context both cargo insurance expenses and hedging expenses are expenses incurred to mitigate risks from the sale of petroleum products. It would be anomalous if expenditure on cargo insurance were recognised as an expense incurred in relation to the sale of such products, while hedge expenses were not. The proposed evidence was said to be based upon an assumption that the PRRTA Act employs the theory held by Professor Garnaut of a petroleum resource rent tax. The Act is not a particular manifestation of some pre-existing form of a petroleum resource rent tax. Even if such a form existed Professor Garnaut's opinions about it could not influence the shape of its particular expression as an Act of Parliament. 35 In addition the Commissioner submitted that much of Professor Garnaut's evidence would be directed to a usurpation of the judicial function. Many of the questions, although qualified with phrases such as 'from an economic perspective' or 'would an economist regard' were in fact directed to a statement of the criterion for liability under the PRRTA Act. 36 Woodside Energy submitted that the petroleum resource rent tax has replaced traditional excise and royalty schemes in the areas in which it applies, namely offshore oil and gas production. The company wishes to show, by reference to extrinsic materials, that the policy underlying the PRRTA Act involves an intention to replace excises and royalties levied on volume or value of production with a regime that would seek to capture a greater share of economic rent than would have accrued under pre-existing arrangements while being more economically efficient by not deterring the development of marginal fields. A government paper entitled 'Background Report on Petroleum Production Taxation' was quoted. Deductible expenditure, whether on revenue or capital account, incurred in the exploration and development stages of a project may be carried forward and augmented at a compounding rate intended to reflect the cost of finance and the risks inherent in investment in offshore petroleum projects. The legislation, it was said, permits such augmented loss accounts to be offset against future 'assessable receipts'. The latter is a net concept employing a cashflow-based approach to bring to account consideration receivable, less expenses payable, in relation to the sale of petroleum from a project. 38 The submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors. 39 Counsel for the company submitted that by the time the PRRT and PRRTA Acts were passed in 1987 a resource rent tax had been mooted for several years. Reference was made to the 1975 paper by Professors Garnaut and Clunies Ross. The Treasurer and Minister for Resources and Energy had formally announced the government's intention to introduce a 'resource rent tax ... to apply to "greenfields" offshore petroleum projects with effect from 1 July 1984' in a statement released on 27 June 1984. That statement was based on a paper released by Government in April 1984 entitled 'Outline of a "Greenfelds" Resource Rent Tax in the Petroleum Sector'. The policy basis for the proposed tax was said to have been outlined in a speech published on 15 August 1984 by the then Minister for Resources and Energy, Senator Walsh. 40 The proposed tax as contemplated by the materials referred to was eventually enacted, although not in 1984 and 1985 as originally planned. The Petroleum Resource Rent Tax Assessment Bill was introduced on 28 November 1986 but lapsed because of the Federal election. It was reintroduced in 1987 and became the PRRTA Act. Initially it applied only to 'greenfields' and thus did not apply to Bass Strait or the North West Shelf. 41 Reliance was placed upon the policy and objects of the tax as identified in the Second Reading Speech in the Houses of Representatives on 21 October 1987. The Second Reading Speech to the Petroleum Resource Rent Legislation Amendment Bill 1991 was said to emphasise, that 'the resource rent tax is based on achieved profits'. It was offered on the assumption that the purpose of the legislation is to tax 'economic rent'. The questions that he had been asked fell within his area of expertise and did not stray into areas of statutory interpretation. His evidence would assist in an appreciation of the consequences of the competing construction arguments. It would assist in construing and understanding the policy and objectives of the legislation as explained in the extrinsic materials and in showing the economic and commercial relationship between the hedging activities and the production and sale of petroleum from Laminaria. 43 Specifically it was submitted that Professor Garnaut's evidence was relevant to understand the mischief which the PRRTA Act was intended to remedy. Evidence of that kind was said to have been relied upon in Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 at [107] and Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [665] . The evidence of the two experts was said to be informative and of assistance to the Court in coming to a conclusion whether the hedging losses are covered by the words 'in relation to' and in understanding what constitutes 'carrying on or providing the operations, facilities and other things comprising the project'. In summary it was said that Professor Garnaut's evidence demonstrates the economic and commercial reality of treating the hedge expenses as being in relation to the sale of petroleum or in carrying on the relevant operations. 44 The accounting treatment which Woodside Energy adopted and Professor Walker's evidence were said to provide useful assistance in confirming the existence of the necessary connection between the sale of petroleum and the payment of hedge expenses, although of course the accounting treatment would not be determinative of the issue. See also Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181 at 189. In the ultimate issue question, Woodside Energy pointed to the abolition of the ultimate issue inadmissibility rule of common law by s 80 of the Evidence Act 1995 (Cth). 46 In reply, the Commissioner referred to the rejection by the Full Court of evidence of irrelevant extrinsic material in Commissioner of Taxation v Murray (1990) 21 FCR 436. That assumption was stipulated in question 5 and each of the succeeding questions must be taken as depending upon it. 52 Against that background the evidence which it is sought to elicit from Professor Garnaut does not go to the meaning of any particular word or words in the PRRTA Act. The term 'economic rent' appears nowhere in the Act, nor does the term 'resources rent tax' save for the title to the Act. In particular, the Act does not contain any explicitly economic terms whose application to a particular case would be assisted by economic evidence. By explicitly economic terms, I mean words such as 'market' and 'competition' which appear in Pt IV of the Trade Practices Act 1974 (Cth). In proceedings under Pt IV of that Act the evidence of economists may be relied upon to aid in the identification of the relevant 'market' and judgments about the effects, historic or predictive, of particular conduct on competition in a market. 53 Re Michael concerned the application of statutory and Gas Access Code provisions to the determination of an access tariff for a gas pipeline. Parker J (Malcolm CJ and Anderson J agreeing) referred to some of the terms of the relevant Act and the Code as being 'in common use in that field of economics which is concerned with competition policy, or more particularly with the regulation of essential infrastructure' (at [107]). His Honour observed that these words or phrases conveyed a meaning to those familiar with the field of economics differing from that which the words themselves would suggest in ordinary everyday usage. In my view, expert evidence may relevantly and usefully inform the court as to this specialised usage, of which the court would otherwise be unaware, so that the court can determine whether the Act and Code is using particular words or phrases in their ordinary everyday usage, or in the specialised usage among those versed in this field of economics. In addition, the potential relevance of some concepts and provisions in the Act and Code can be more readily understood. The general approach which I took was to err on the side of admitting evidence which was on or close to the borderline, on the basis that such evidence, if admitted, could be evaluated as to substance and weight in final submissions. The company relies upon various extrinsic materials antedating the passage of the Act as indicative of that purpose. Assuming that purpose is made out, then Professor Garnaut offers what amounts to the inference that the overall objective of the Act is to generate revenue 'without distorting business decisions on the amount or composition of investment or production'. This identified purpose is relied upon to assist the Court to decide in the first place, whether the contentious hedging losses were 'expenses payable by [Woodside Energy] in relation to the sale' of petroleum within the meaning of s 24(a) of the PRRTA Act. Assuming that the hedging losses are properly to be called 'expenses' the question reduces to whether they are expenses 'in relation to' the sale. 57 The words 'in relation to' and similar terms like 'in respect of' or 'in connection with' or just 'in' have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49 ; (1988) 165 CLR 642, the term 'in respect of' was said to have a wide meaning. It '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends' (at 653-654 per Deane, Dawson and Toohey JJ). The words 'in relation to' have been described as a 'prepositional phrase' which is 'indefinite' and which, 'subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters' --- O'Grady v North Queensland Company Limited [1990] HCA 16 ; (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used --- Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549 ; (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited. 58 Two things may stand 'in relation to each other' in a variety of ways. The relationship may be spatial, temporal or causal. It may be a relationship of similarity or difference. Relationships between things in the law do not simply exist to await discovery. They are defined by the common law or by legislation and their authoritative interpreters. The criteria by which a statutory test of 'relationship' is to be applied will have to be relevant to and serve the purposes of the statute. The relationship between claimed expenses and the sale of petroleum products in s 24(a) of the PRRTA Act cannot be the subject of a bright line definition covering all cases but it must lie within the bounds of relevance to the statutory purpose. If that purpose can be explained or elucidated by reference to a recognised economic mechanism to which the Act is intended to give effect, then expert evidence about the operating principles of that mechanism can be received. Such evidence may not be material directly concerned with interpretation of provisions of the Act as is extrinsic material received pursuant to s 15AB of the Acts Interpretation Act . Nor can it justify any application of the Act beyond the bounds set by its language. But it may help to identify the purpose of the statute and thus inform the application of ambulatory terms in it such as 'in relation to' in s 24(a). 59 The preceding observations do not import any concluded view about whether the assumption on which Professor Garnaut will base his evidence is made out. That will require a closer consideration of the terms of the Act and the extrinsic materials relevant to its interpretation. It is better done in the context of all the evidence, including the extrinsic materials relied upon. I am not prepared to rule Professor Garnaut's evidence inadmissible. I take it as evidence rather than as submission in that it purports to demonstrate that the economic mechanism to which the PRRTA Act is said to give effect would treat hedging losses as expenses in the way for which Woodside Energy contends. If some of his evidence trespasses into argument, I will simply treat it as such. I do not regard him as offering evidence on the ultimate issue even if that were a difficulty. Rather, it proposes that a certain treatment of hedging losses would advance the purpose of the statute viewed in the light of the economic theory which underpins it. I will therefore admit the evidence proposed to be called from Professor Garnaut. Ultimately, this is a decision about relevance. It may be that in the light of further evidence and argument his evidence will be shown to be based upon a false assumption. If that is so, then it may be that it will be rejected as irrelevant. I am not prepared to find, on the materials presently before me, that the assumption upon which he advances his evidence has been falsified. It seems to me to be at least arguably relevant and so will be admitted. That is not to say that such evidence can displace the words of the statute. Nor does it involve the expert witness in interpreting the statute. But where, as in this case, there are terms used of indefinite import such as 'in relation to', 'incurred ... in relation to' and 'made ... in carrying on ... operations', then such evidence may properly inform their application having regard to the purpose of the statute and the context in which the provision appears. 61 In Rowe and Son Pty Ltd v Commissioner of Taxation [1970] HCA 57 ; (1971) 124 CLR 421, Gibbs J referred to expert evidence that it was unusual to bring into the accounts of a trader, making sales on terms only, the payments received or receivable in the year in question and that to do so would not record the true position of the trading. The passage from the judgment of Gibbs J quoted above was quoted in the joint judgment of Hill and Heerey JJ at 134.

admissibility expert evidence economic evidence accounting evidence whether relevant to application of statute whether purporting to interpret statute whether extrinsic material evidence as to purpose of petroleum resource rent tax assessment act as taxing 'economic rent' evidence elucidating purpose of act application of ambulatory expressions 'in relation to' 'incurred ... in' relevance of accounting practice to application of general terms in act evidence held admissible petroleum resource rent tax taxable profit assessable receipts deductible expenditure expenses payable in relation to sale of petroleum nature of tax whether tax an economic rent relevance of economic expert evidence to characterisation and therefore purpose of act relevance of accounting expert evidence as to treatment of deductions claimed deductions hedging losses whether deductible expenses evidence taxation

The conduct in question is that of the respondent, an employee of the Australian Taxation Office (ATO). The applicant has issued four other sets of proceedings against individual officers of the ATO. The events with which each proceeding is concerned are related. The reasoning on determination of each proceeding is also similar. The respondent objects to the competency of the application on the basis that the action the subject of the application was not conduct for the purpose of making a decision under an enactment to which the ADJR Act applies. Alternatively, the respondent contends that the applicant does not have standing to bring the application. Ivyside claimed GST input tax credits with respect to various purchases in relation to the company. On 22 May 2007, the respondent advised the applicant that the claims at 'label G11' on his activity statement for the period July to September 2006 would be disallowed because valid tax invoices were not produced to substantiate the amount of GST credits claimed. The ATO subsequently issued the applicant notices pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) and s 353- 10 of the Taxation Administration Act 1953 (Cth) (TAA). On or around 3 October 2007, the ATO issued the applicant an amended assessment and penalties for the July to September quarter of 2006. In an affidavit in support of the application complaint is raised of a refusal to afford the applicant an informal review. He stresses that this is now his real complaint. The respondent complains that there was no evidence put forward which could remotely support any allegation of oppressive, harassing or unlawful behaviour by the respondent. The respondent submits that merely by conducting an audit, the ATO (and certainly the respondent) did not make a decision of an administrative character under an enactment. The respondent also points to the fact that the affidavit in support of the application now complains that the decision in respect of which review is sought is not the conduct of the respondent in conducting the audit. Rather it is now in the conduct which led to a decision to deny the applicant an informal review of the decision to disallow GST entitlements claimed by Ivyside of which the applicant is a director, public officer and shareholder. If the complaint is the refusal to conduct an informal review, the respondent points to the fact that there is no evidence of any request to do so or any refusal to do so or any agreements to conduct an informal review. Further, if there was conduct on his part which formed part of the making of a decision (which is denied), it formed part of the process of making or refusing to amend a calculation of tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the GST Act) and as such would not be capable of review under the ADJR Act as it is excluded under Sch 1(e). If the conduct by the respondent can be said to be conduct for the purpose of making a decision, then the decision in question is that of the Commissioner of Taxation (the Commissioner) to disallow GST input tax credits claimed by Ivyside for the July 2006-September 2006 quarter. The company has had appellate procedures available to it in respect of the decision made by or on behalf of the Commissioner. As observed in Mirvac Homes (NSW) Pty Limited v Airservices Australia (No 1) [2004] FCA 109 by Branson J, the provision in the Federal Court Rules for the filing and service of a notice of objection to competency is intended to encourage a respondent to inform the applicant promptly that the jurisdiction of the Court is in issue. The filing of a notice of objection to competency also places the Court on notice that its jurisdiction to make the orders sought by the applicant in the proceeding is challenged. The Court must then decide, before it makes the orders sought by the applicant or any substantive orders, whether it has jurisdiction to proceed ( R v Federal Court of Australia; Ex parte WA National Football League [1979] HCA 6 ; (1979) 143 CLR 190). In Bray v F Hoffman-La Roche Ltd (2003) 130 FCR 317 , Finkelstein J at [239] expressed the view that, where an issue which is properly characterised as jurisdictional is raised, it should be dealt with at the outset although a different approach was taken in Khatri v Price [1999] FCA 1289 ; (1999) 95 FCR 287 per Katz J at [14]). Whether or not it is necessary to resolve the jurisdictional issue at the outset, it appears to me that the current jurisdictional argument is succinct and independent in the sense that it can be resolved without any other evidentiary enquiry. If the argument is correct, there seems no obvious reason in this case why consideration of the jurisdictional challenge should be further deferred. Deferral has not been sought by the applicant. (As distinct from raising opposition to the objection). The conduct complained of did not constitute a reviewable decision as it was not a substantive determination. Further, the respondent argues that even if a decision was made by the respondent in relation to the conduct of an audit, it formed part of the process leading up to the making of the decision by the Commissioner to disallow GST input credits claimed by Ivyside and would be excluded pursuant to Sch 1(e) of the ADJR Act. He contends that the respondent's actions constitute conduct for the purpose of making a decision under an enactment to which s 6 of the ADJR Act applies. Section 5 of the ADJR Act provides that a person aggrieved by a decision to which the Act applies may apply to the Court for an order of review on certain grounds. Section 6 of the ADJR Act provides for review of conduct, engaged in, being engaged in or proposed to be engaged in for the purpose of making a decision to which the ADJR Act applies. It is apparent from the definition of 'decision to which this Act applies' in s 3 of the ADJR Act that the Act only applies where there is a making of, proposal to make or requirement to make a decision, the decision is of an administrative character, and the decision is made under an enactment. It is clear that a "decision to which this Act applies" must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment. But these characteristics provide little guidance as to the meaning of the word "decision" upon which the definition in s.3(1) is based. First, the reference in the definition in s.3(1) to "a decision of an administrative character made ... under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s.3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J., "a determination effectively resolving an actual substantive issue ". Thirdly, s.3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s.3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision ". On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns , there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process. With the exception of s.3(2)(g), the instances of decision mentioned in s.3(2) are all substantive in character. Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s.3 point to a substantive determination. In this context the reference in s.3(2)(g) to "doing or refusing to do any other act or thing " (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s.16(1)(b) or in par. (e) of Sched.1 or par. (a) of Sched.2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. Views on whether or not particular decisions or conduct constitutes a reviewable decision have not always been unanimous (for example, Guss v Federal Commissioner of Taxation [2006] FCAFC 88 ; (2006) 152 FCR 88). Not only are there questions as to whether conduct constitutes a decision but also whether it is a decision taken under an enactment. For a decision to be reviewable it must be one 'for which provision is made by or under a statute', the provision should be more specific than general (for example, Hutchins v Commissioner of Taxationn (1996) 65 FCR 269 and Electricity Supply Assn of Australia Ltd v Australian Competition & Consumer Commission [2001] FCA 1296 ; (2001) 113 FCR 230). A general authorisation for a body to act in a certain way is not usually regarded as being sufficient to qualify a decision as being one made under an enactment: Salerno v National Crime Authority (1997) 75 FCR 133. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. In the language of Fox ACJ in Evans v Friemann (1981) 35 ALR 428 at 431 the relevant decision or conduct did not constitute a decision which was final and conclusive for immediate purposes at least. It was not the ultimate or operative determination of an issue as distinct from the determination of issues arising in the course of making such an ultimate decision ( Social Services, Director-General of v Chaney [1980] FCA 87 ; (1980) 31 ALR 571). The best guidance for this is the clear language of Mason CJ in Bond [1990] HCA 33 ; 170 CLR 321 that the decision will generally but not always entail a decision which is final or operative and determinative, at least in a practical sense and a conclusion reached that is a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision unless the statute provided for the making of a finding or ruling on that point so that the decision, though an indeterminate decision, might accurately be described as a decision under an enactment. When it comes to the consideration of policy, the competing policies on the one hand of permitting aggrieved persons to challenge administrative decisions and on the other, enabling efficient administration of government processes provides some guidance. If the legislation has provided other means of challenging decisions rather than judicial review under the ADJR Act, at least insofar as policy is concerned, availability of a right of challenge is not withheld. In Edelsten v Health Insurance Commission (1990) 27 FCR 56 the Full Court held that the decisions of the Commission to refer a matter for investigation to a committee were not reviewable as they were not decisions affecting rights and were at a very early stage of the administrative process for determining a possible contravention. They were no more than steps in a process which might lead to an operative determination. The decisions lacked any quality of finality and were not substantive determinations. That complaint appears to have been (emphatically) replaced by the applicant with a complaint that he was refused an informal review. In my view, the alleged actions or conduct of which complaint has been raised by the applicant did not constitute a decision of a reviewable nature within the meaning of the ADJR Act and the authorities. There was no substantive determination. There was no decision having the character or quality of finality. It was not a decision which affected in any way or in any direct sense the applicant's legal rights and obligations. Further and as a distinct ground, even if there were an appropriate basis for review, it could be advanced only by the company, Ivyside not by the applicant. However, if this were the only issue standing in the way of the competency of this application, I may have granted any application to amend the identity of the applicant, or for that matter, the respondent. The difficulty with the competency of the application however, in my view, is much more fundamental, going to jurisdiction. The respondent's jurisdictional objection to competency must be upheld and the claim dismissed. The applicant is to pay the costs of the respondent to be taxed if not agreed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

judicial review application brought pursuant to administrative decisions (judicial review) act 1977 (adjr act) to review conduct of respondent objection to competency of application whether conduct for the purpose of making a decision to which the adjr act applies meaning of 'decision' under adjr act whether substantive determination whether applicant has standing to bring application administrative law

His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the RRT) of 20 October 2004. The RRT affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act). 2 The Federal Magistrate dismissed the review application as an abuse of process under r 13.10(c) of the Federal Magistrate Court Rules 2001 , and ordered the applicant to pay the costs of the first respondent. His Honour's reasons also indicate that he dismissed the application because he did not have the jurisdiction to entertain it, although his order of 26 September 2006 is confined to the abuse of process determination. 3 The parties proceeded on the basis that, as the application to the Federal Magistrates Court was determined summarily as an abuse of process, it is an interlocutory judgment: see Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177; SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 at [48] ; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 ; Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [8] - [15] ; SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798. The nature of the present application, being an application for leave to appeal, appears to recognise that position: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA). By way of contrast, an appeal lies as of right from a final decision of the Federal Magistrates Court: see s 24(1)(d) of the FCA. 4 The respondent submitted that the applicant's application for leave to appeal was out of time as O 52 r 10(2A)(b) allows seven days to file the application from the date judgment was pronounced. That Rule applies only where leave to appeal is sought from an interlocutory judgment of the Federal Court. The time for filing an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court is set out in O 52 r 5(2), which allows 21 days. Consequently, this application (if it is properly an application for leave to appeal), having been made on 13 October 2006, was made in time. 5 In my view, leave to appeal the Federal Magistrate's decision is not required as I think the decision of Raphael FM was a final decision. 6 There are a number of decision of the Court which, in different circumstances, treat summary dismissal as an interlocutory judgment or as a final judgment: cf SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 ; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 with NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 ; MZXEF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 507 ; MZXIW v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 123 ; MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466. 7 The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35 and Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33] , Lander J suggested that those two decisions may not sit readily together. In that case, Ms Luck had been refused leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court or a frivolous or vexatious proceeding. It was concluded that her rights had not been finally determined because she retained the right to issue proper proceedings. 9 But their Honours did not seek to qualify or explain what had earlier been said in Anshun [1980] HCA 41 ; 147 CLR 35, and the unequivocal statement at page 179 does not specifically refer to decisions such as in this case, where the applicant's application to review the decision of the RRT for the second time sought to go behind an already final judgment which had finally determined his rights. 10 Anshun [1980] HCA 41 ; 147 CLR 35 recognises that different results flow, depending on the grounds on which a proceeding is deemed to be an abuse of process. 11 In this matter, the applicant seeks to challenge afresh a decision that he has already unsuccessfully challenged in the Federal Magistrates Court and in this Court. His application for special leave to appeal is still before the High Court. The decision of Raphael FM, that the fresh application was an abuse of process, was based upon the application of the principles in Anshun [1980] HCA 41 ; 147 CLR 35. In my view it was therefore a final judgment. I consider that it finally determined the applicant's rights, as he has now (subject to the present proceeding before this Court) no right to further challenge the RRT decision, except by pursuing his earlier application for special leave to appeal to the High Court. 12 Accordingly, strictly speaking, in my view leave to appeal from the decision of Raphael FM was not necessary. 13 In the result, my view on that issue does not matter. If leave to appeal were necessary, I would refuse it for the reasons set out below. If leave to appeal were not necessary, I would dismiss the appeal for the same reasons. 14 In my view, there is no prospect of the appeal or proposed appeal being successful. 15 The applicant is a citizen of Nepal who moved to Australia on 7 December 2003. He promptly applied for a protection visa under the Act. He claimed to have a well-founded fear of persecution in Nepal because he had refused to participate with the Maoist rebel movement, and had then become a prime target of that movement. He claimed to have been a focus of the members of that movement because he had previously lived in India and had been a high ranking officer in the Indian defence force with expertise in weaponry. 16 The RRT accepted the applicant's background, and that he had been asked to assist the Maoist movement and that he had refused. It found, however, that he did not have a well-founded fear of persecution, as he claimed, because he had subsequently spent some 18 months in Nepal without harm, including maintaining his business and house until about four months before leaving for Australia. It did not, therefore, have to consider whether the Nepalese authorities did not provide him with the level of protection available from non-state violence to which he was entitled. 17 The RRT also concluded that, because the applicant had previously lived in India, he and his family could reasonably return and live in India without harm from the Nepalese Maoist movement. It is unclear from the RRT's reasons whether that alternative basis for its conclusion involved a misapprehension about the internal relocation principle (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, or an assessment that Australia did not owe protection obligations to the applicant by reason of s 36(3) of the Act as explained in s 36(4) and (5) of the Act because he had the capacity to secure safe haven in another country. It did not dilate on its reasons for that conclusion. 18 The reason why Raphael FM regarded the application as an abuse of process is quite clear. Following the decision of the RRT, the applicant sought review of its decision in the Federal Magistrates Court on 8 November 2004. That application was instituted in the Sydney Registry of the Federal Magistrates Court. It was dismissed by Lloyd-Jones FM on 27 January 2006. An appeal to this Court from that decision was instituted in its Sydney Registry on 13 February 2006. It was dismissed by Edmonds J on 12 May 2006: SZERD v Minister for Immigration and Multicultural Affairs [2006] FCA 560. The applicant then applied to the High Court for special leave to appeal from that decision. The application for special leave to appeal, instituted on 1 June 2006, was deemed to have been abandoned on 29 June 2006 under the High Court Rules , but it was subsequently reinstated by order of Kirby J on 14 August 2006. It is still, apparently, in the list of cases in respect of which special leave to appeal to the High Court is to be determined. 19 Raphael FM, in the light of that history, described the present application as seeking simply to re-agitate matters that had already been decided adversely to the applicant. Consequently, his Honour regarded the application as an abuse of process. 20 In my view, that conclusion was unexceptionable. The grounds of review in the application to the Federal Magistrates Court in its Sydney Registry are very similar to those expressed in the application to the Federal Magistrates Court in its Adelaide Registry and heard by Raphael FM. In essence, they are the same. They commonly complain of bias or ostensible bias on the part of the RRT, of a failure on its part to accord the applicant procedural fairness, of a failure on its part to comply with s 424A of the Act, and of unreasonableness in its factual decision-making. Those matters were all addressed by Lloyd-Jones FM, and then on appeal by Edmonds J. 21 The only apparently additional information available to Raphael RM was the transcript of the hearing before the RRT. Neither in his oral submissions, nor in his written submissions, nor apparently before Raphael FM, was any specific reference made to any part of that transcript. I have considered the transcript and the outline of submissions. I did not discern that it provides any basis for the applicant making out any of the complaints which he unsuccessfully made previously to Lloyd-Jones FM and to Edmonds J in a way which was not appreciated by them. In any event, the applicant (although now self-represented) was represented by counsel before Lloyd-Jones FM and there was no apparent suggestion then that his complaints would have had more strength if the transcript of the RRT hearing was available. Nor is there any indication that the transcript was then sought by him. 22 The applicant's submissions did not identify, nor even suggest, that there was any error of principle in the approach of Raphael FM in addressing r 13.10(c) of the Federal Magistrates Court Rules . The focus remained on the RRT's reasons. There was only a passing reference in the application to this Court that his Honour failed to accord the applicant procedural fairness. No particulars of that allegation were given, and nothing was put in writing or in oral submissions in support of it. It is simply an assertion without foundation. 23 I note that Raphael FM was told by the applicant that his application for special leave to appeal to the High Court, having been reinstated, had subsequently been dismissed. Counsel for the first respondent indicated that that was not the case, and on this application orally the applicant did not dispute that fact. There is no apparent record of a decision having yet been made on his application for special leave to appeal. I do not think that any misunderstanding induced by the applicant on that score affects in any way the reasoning of Raphael FM. In my view, it is clearly a case where the applicant is seeking to re-litigate a case both in the Federal Magistrates Court in its Adelaide District Registry and in this Court in the Adelaide District Registry which he has already litigated, and which has already been determined adversely to him, and in circumstances where no new significant information has been brought forward to explain why that is being done. In my judgment, the application dismissed by Raphael FM was clearly an abuse of the process of the Court: see Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378. 24 As I have concluded that there is no real prospect of showing error on the part of Raphael FM in dismissing the application as an abuse of process, I need deal only briefly with other matters relevant to granting leave to appeal from that decision. There is no important point of principle sought to be raised by the applicant in respect of the decision of Raphael FM. The only assertion directly concerning that decision is the brief and undeveloped one that the applicant was not accorded procedural fairness by Raphael FM. But nothing has been identified to suggest any general importance to the assertion; it is one apparently made in the circumstances of this particular case. Nor, in my view, is there made out any foundation for the assertion. 25 Otherwise, as I have noted, the contentions focused on the decision of the RRT. That decision was reviewed by Lloyd-Jones FM and by Edmonds J. The issue whether the applicant should be entitled to have the RRT decision reviewed independently by a separate and belated application to the Federal Magistrates Court is a discrete one, again to be addressed in the particular circumstances. 26 In the event that the applicant has ongoing complaints of general importance arising from the RRT's decision, following the decisions of Lloyd-Jones FM and of Edmonds J, his proper course is (as he has done) to seek special leave to appeal to the High Court. His complaints will be considered on the hearing of the application for special leave to appeal. 27 The learned Federal Magistrate's alternative basis for dismissing the application, namely his conclusion that the Federal Magistrates Court did not have jurisdiction to hear and determine the application was based upon s 477 of the Act. By the Migration Litigation Reform Act 2005 (Cth), s 477 was amended to prescribe a time limit within which any application under s 476 might be brought to the Federal Magistrates Court. Because the RRT decision was given on 20 October 2004, for the purposes of s 477, the applicant was taken to have been notified of the RRT decision only on 1 December 2005 when the amendment took effect: see s 1 and Sch 1 cl 42 and cl 17 of the Migration Litigation Reform Act 2005 . The application, made on 19 July 2006, was clearly outside the time prescribed by s 477. Hence, Raphael FM determined that he had no jurisdiction to entertain it. 28 In SZICO v Minister for Immigration and Multicultural Affairs [2006] FCA 1803 , it was decided that ss 476 and 477 of the Act operate together to limit the jurisdiction of the Federal Magistrates Court to hear such an application as that presently under consideration. It does not appear that it was argued that s 476 defines the jurisdiction of the Federal Magistrates Court and that s 477, by imposing a time limit upon the manner of its exercise, may not simply be limiting the jurisdiction. I observe that s 486A imposes similar time limits upon an application to the High Court under Chapter III of the Constitution for relief in the nature of constitutional writs. Of course, it does not arise in this matter to address whether s 486A is within power, and if it is not whether s 477 should be construed not as limiting the jurisdiction of the Federal Magistrates Court because the grant of jurisdiction by s 476 of the Act is expressed to be "subject to this section", rather than as subject to Part 8A generally, but as defining improperly the manner of its exercise. 29 In those circumstances, the decision in SZICO [2006] FCA 1803 in my view also leads to the conclusion that the alternative reason for the decision of Raphael FM is also correct. 30 For those reasons, no arguable error has been shown in the decision of Raphael FM, and the application is to be dismissed. 31 That leaves the applicant with his application for special leave to appeal to the High Court from the decision of Edmonds J. As that is his final opportunity to set aside the decision of the RRT, it would be appropriate for him to attend assiduously to it. 32 The application is dismissed. It is unclear whether the application included the Refugee Review Tribunal as a second respondent, and in case it did not, I will add it as a party. The name of the first respondent has since been altered, and I will also substitute the name of the first respondent as Minister for Immigration and Citizenship. The Refugee Review Tribunal to be joined as a second respondent. 2. The name of the first respondent be changed to Minister for Immigration and Citizenship. 3. The application be dismissed. 4. The applicant pay to the first respondent his costs of the application.

whether summary dismissal as an abuse of process in the federal magistrates court final or interlocutory decision abuse of process because issues already decided in other proceedings by applicant time to file appeal against interlocutory judgment of the federal magistrates court federal court rules o 52 r 5(2) procedure procedure

Mr Rivera has been in custody since 19 September 2002, pending an extradition request by the United States of America ('the USA'). 2 On 4 September 2002, a NSW magistrate issued a provisional arrest warrant under s 12 of the Act for Mr Rivera's arrest. On 12 November 2002, the USA presented a request to Australia for Mr Rivera's extradition. On 16 December 2002 Magistrate O'Shane ('the Magistrate') determined under s 19 of the Act that Mr Rivera was eligible to be surrendered to the USA in relation to the extradition offence of murder. Section 19(9) of the Act provides that where a magistrate determines that the person is eligible for surrender to the extradition country in relation to the extradition offence, the magistrate shall, relevantly, by warrant order that ' the person be committed to prison to await surrender '. On the same day, the Magistrate issued a warrant under s 19(9) of the Act ('the commitment warrant') committing Mr Rivera to the Metropolitan Remand and Reception Centre ('the Remand Centre') to await surrender, or release under s 22(5) of the Act. Mr Rivera sought, unsuccessfully, to review the Magistrate's decision. 3 In August 2006, the Minister for Justice and Customs determined under s 22 of the Act that Mr Rivera be surrendered to the USA. A challenge by Mr Rivera to that decision was dismissed by a Judge of the Court. An appeal to the Full Court was dismissed. Mr Rivera has filed an application for special leave to appeal to the High Court from the Full Court decision. 4 Mr Rivera was moved from the Remand Centre to Parklea in June 2007. 5 Mr Rivera seeks a writ of Habeas Corpus. He seeks a declaration that his detention at Parklea is unlawful within the meaning of s 53 of the Act, damages for unlawful imprisonment while in custody at Parklea and an order that he be transferred from Parklea back to the Remand Centre or, alternatively, to Villawood Detention Centre. He also seeks an injunction restraining the respondents from removing him from custody at the Remand Centre if he is transferred there. 6 Mr Rivera seeks pro bono assistance under Order 80 of the Federal Court Rules . 7 Each of the respondents moves for dismissal of the proceedings under Order 20 Rule 2 of the Federal Court Rules . The respondents do not challenge the jurisdiction of the Court, which is conferred by s 39B(1A)(c) of the Judiciary Act 1903 (Cth). 8 Mr Rivera, in bringing these proceedings, asserts that the Commonwealth has ' overall responsibility ' for the determination of his extradition case and that the State acts as its agent in facilitating his detention. That is not disputed by the respondents for the purposes of these applications. He has commenced proceedings in the Supreme Court of New South Wales and in the Human Rights & Equal Opportunity Commission ('HREOC') in connection with conditions of his custody. He makes a number of allegations in his affidavit filed in these proceedings giving details of various matters, such as the lower standard of access to legal materials in Parklea than that made available at the Remand Centre and inability to gain access to all of his personal belongings on transfer. 9 Mr Rivera asserts that being held in a "correctional" centre rather than a "remand" centre where prisoners are unconvicted is inconsistent with article 14 of the International Covenant on Civil and Political Rights ('the Covenant') which, he says, provides that unconvicted prisoners will be separated from convicted prisoners. It is also, he submits, contrary to s 53 of the Act for him to be placed in a correctional centre. 10 He also asserts in his affidavit, without any supporting factual material, that the transfer is an abuse of process designed to disrupt his various legal proceedings. Mr Rivera remained at the Remand Centre until June 2007, despite 5 years of constant legal proceedings commenced by him. This assertion is made without a foundation and I see no basis for it. 11 Mr Rivera does not seek to be released from custody but wishes to be transferred back to the Remand Centre. That is correct. There is no arguable case that Mr Rivera's incarceration is unlawful and Mr Rivera does not suggest that it is. His challenge to the Magistrate's decision has been exhausted. 13 Habeas corpus is not available to remedy perceived inadequacies in the conditions of custody. Habeas corpus is not available to impeach collaterally the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity (Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480 per Deane J; Re Stanbridge's Application (1996) 70 ALJR 640 at 642-3 per Kirby J). 14 There is no arguable case for a writ of habeas corpus. 17 Mr Rivera has not been able to point to a deficiency in the statutory authority to imprison him at Parklea. As s 53 provides, it is the laws of NSW with respect to the conditions of imprisonment of persons on remand awaiting trial which regulate Mr Rivera's imprisonment. Section 53 and s 19(9) of the Act, under which the commitment warrant was issued, refer to "prison". Prison is defined in s 5 of the Act to ' include a gaol, lock-up or other place of detention '. 18 In Cabal v Secretary, Department of Justice (Victoria) (2000) 177 ALR 306 Gray J considered a claim similar to Mr Rivera's concerning treatment and the asserted right by persons awaiting extradition not to be held in the same manner as convicted persons (at [14]---[15]). There it was argued that the Act does not permit a person to be held under a regime of correction but only under a regime of detention and that the term "prison" should be read this way. The submission was that the prison in which the applicants were held, a correctional prison, was not a prison within the meaning of the Act (at [16]). There, too, the applicants sought habeas corpus. 19 As noted by Gray J in Cabal (at [21]), "prison" is a term of broad definition. It is defined in the Macquarie Dictionary as meaning ' a public building for the confinement or safe custody of criminals and others committed by law ' or ' a place of confinement or involuntary restraint '. The common law has accorded the term similar breadth. It encompasses both confinement and custody. Justice Gray concluded that Parliament intended, by s 53, to give the term "the broadest meaning". His Honour concluded that ' the intention of s 53 of the Act is to ensure that, so far as practicable, those detained under the Extradition Act will not be treated as convicted criminals, but will be treated according to whatever regime exists in the particular state or territory for persons held in prison awaiting trial ' (at [21]). In Victoria, there was no distinction between convicted and unconvicted prisoners. Where that was the case, the way in which a person was held under s 53 was not inconsistent with the terms of the Act (at [22]). His Honour concluded (at [23]) that even though Parliament sought to achieve the object of treating persons awaiting extradition as humanely as possible, there was no occasion for reading down the definition of "prison" to promote that underlying object or purpose. 20 In Cabal , Gray J concluded (at [33]) that there was no valid argument available to reduce the meaning of the term "prison" in s 19(9) of the Act so as to render it inapplicable to different classes of prison. Similarly, I am of the view that no arguable case for any breach of the Act on this basis has been made out. The term "prison" applies to the Remand Centre and to Parklea. There is nothing in the Administration Act or the Act which imposes any obligation on the NSW correctional authorities or the Commonwealth to accord to Mr Rivera segregation from convicted persons. 22 The Remand Centre is a maximum security correctional facility, one of three correctional facilities which make up the Silverwater Correctional Complex. It operates for prisoners on remand, or awaiting transfer, or attending Court. Most inmates leave the Remand Centre within the first few months of arrival. This is either because they obtain bail and are released or they are classified and transferred to the centre of classification. Parklea is a correctional centre that houses remand and sentenced maximum and minimum-security prisoners. Each of Parklea and the Remand Centre has, since 2001, been declared a correctional centre pursuant to ss 225 and 226 of the Administration Act. That is, they have the same prison classification under the Administration Act. 23 Section 3 of the Administration Act defines "inmate" as a person to whom Part 2 of that Act applies. Part 2 applies, as provided, in s 4(1). It is not suggested s 23 does not apply. While, in practice, Parklea and the Remand Centre house different categories of prisoners, there is no breach of the Administration Act or the Act by moving Mr Rivera from one correctional centre to the other. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. There is no suggestion that it has been withdrawn and the parties accept that the reservation is still in force. After considering the Covenant and Australia's obligations in the light of the reservation and the Act in some detail, Gray J concluded (at [28]) that the Act has a clear meaning which cannot be changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. His Honour also held that, even if the actions of one state were such as to place Australia in breach of its international obligations, that would not change the meaning of the Act. Neither the Act nor the Administration Act impose any obligation on the NSW correctional authorities to accord Mr Rivera, or any other prisoner, segregation from convicted persons. Even if Mr Rivera's imprisonment at Parklea were a contravention of Australia's obligations under the Covenant, it would be of no assistance to him. The terms of the Covenant form no part of the law of Australia ( Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 per Mason CJ and McHugh J at 305; per Brennan J at 321; per Dawson J at 348; per Toohey J at 359-360). 28 Justice Gray also considered whether the Act must be construed in accordance with the Covenant. He concluded that there was no valid argument available to the applicants in that case, who were legally represented, to reduce the meaning of the term "prison" in s 19(9) of the Act so as to render it inapplicable to prisons for correctional purposes in circumstances where the applicants were imprisoned in the same manner as people convicted for offences (at [33]). 29 It follows that this ground is not made out. 30 Mr Rivera asserts that, in the Extradition Treaty between Australia and the USA there is an implied condition that persons awaiting extradition be kept in gaols conducive to their states as unconvicted prisoners. However, he could point to no article in the Treaty or the Protocol on which to base such an implication, which would be contrary to the Australian statutory regime. 31 Mr Rivera also submits that it was an implied condition of his imprisonment that he be able to have access to material available in the Remand Centre but not in Parklea, to prepare for his various legal proceedings. No basis for such an implication has been identified. Nor is it apparent that he is unable to prepare his cases from Parklea. 32 Mr Rivera also asserts that the Commonwealth cannot delegate conditions of imprisonment to the States. Section 120 of the Constitution and s 53 of the Act are sufficient answer to that submission. First, I should say that Mr Rivera presented his case, both in writing and orally, articulately and with some skill. Mr Rivera has been engaged in extensive litigation since his arrest in this country in 2002 in this Court, the Supreme Court of NSW, the High Court and HREOC in over a dozen separate proceedings, many of them of some complexity and conducted by him without the benefit of legal assistance. 34 I have considered whether it would be in the interests of justice to refer Mr Rivera's present application for pro bono assistance. I have considered whether there is an arguable basis for any of the matters relied on and have concluded that there is not. In the circumstances it is not appropriate to make an order under Order 80 of the Federal Court Rules with respect to Mr Rivera's application for a writ of habeas corpus or the orders sought by him for transfer from Parklea. It follows that the claim for damages for unlawful imprisonment at Parklea and for an injunction to restrain the respondents from removing him from the Remand Centre would also fail. The proceedings should be dismissed under Order 20 Rule 2 of the Federal Court Rules . The application for an order under Order 80 of the Federal Court Rules should be refused. Mr Rivera should pay the respondents' costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

application for writ of habeas corpus whether writ available where applicant does not argue detention unlawful no arguable case for writ application for declaration that detention at correctional facility unlawful under extradition act 1988 (cth) whether act imposes obligation to hold persons awaiting extradition in different manner to convicted persons whether applicant can be moved from remand centre to correctional facility whether nsw act applies definition of 'prison' for purposes of act no arguable case incarceration unlawful application for referral for pro bono assistance no arguable basis for matters relied on applicant presented case competently order not appropriate habeas corpus extradition order 80

2 The first judgment dealt with the question of whether, in proceedings under the Workplace Relations Act 1996 (Cth) ('the Act') in which the applicant sought the imposition of civil penalties against, inter alia, the third and fourth respondents, as natural persons, such respondents could decline to file Defences, relying upon the privilege against exposure to penalties. I determined that they could not, whereupon they proceeded to file their Defences. 3 The second judgment dealt with an application by the applicant for leave to question one of his own witnesses as though cross-examining him under s 38(1)(c) of the Evidence Act 1995 (Cth), where there had been a prior inconsistent statement made by the witness (see also the third judgment at [212]-[213]). 4 The third judgment dealt with the alleged contraventions of ss 298SC(c), 298S(2)(a) and 170NC of the Act, which were said to have been committed in the Illawarra region of New South Wales on Monday 19 January 2004, Tuesday 17 February 2004 and Wednesday 18 February 2004. Those that were pressed by the applicant were set out extensively in the third judgment: in relation to s 298SC(c) in subparagraphs (a)-(l) of [74], in relation to s 298S(2)(a) in subparagraphs (m)-(o) of [74] and in relation to s 170NC in subparagraphs (p)-(r) of [74]. 5 In the third judgment I found, at [294], that nine of the twelve alleged contraventions of s 298SC(c) of the Act had been established. Those contraventions had been detailed in subparagraphs (a), (c), (d), (e), (g), (h), (i), (k) and (l) of [74]. 6 At [295] I found that none of the alleged contraventions of s 298S(2)(a) of the Act which were detailed in subparagraphs (m), (n) and (o) of [74] had been established and at [296] I found that none of the contraventions of s 170NC alleged in subparagraphs (p), (q) and (r) of [74] had been established. In the result nine declarations of contravention of s 298SC(c) of the Act were made, one order was made for the payment by the third respondent of a pecuniary penalty, two orders were made for the payment by the fourth respondent of pecuniary penalties, three orders were made for the payment by the first respondent of pecuniary penalties and three orders were made for the payment by the second respondent of pecuniary penalties. In addition, orders were made for the destruction of forms in the custody, possession or control of the first and second respondents which required union delegates 'to ensure that all workers on site are financial members of the relevant union' and orders were made for the publication by the first and second respondents of advertisements in the 'Illawarra Mercury' newspaper drawing attention to the fact that no employee or contractor in the building industry was required to join the CFMEU or the CFMEU (NSW Branch) in order to work in the building industry, that union membership was a matter of choice and that union delegates and officials could not tell workers on a building site that they must join the union in order to work on the site. The full text of the required advertisements was set out in Annexures 'A' and 'B' to the orders made on 26 March 2007. Finally, orders were made dismissing the other claims made by the applicant in respect of which no findings of contravention had been made. 9 The substantive hearing which led to the third judgment of 9 February 2007 occupied some 16 hearing days over the period 17 July --- 11 December 2006 and the fourth judgment of 26 March 2007 followed a further two hearing days on 14 February and 14 March 2007. 10 On 27 April 2007 a judge of the Court ordered that the orders imposing the pecuniary penalties, requiring the destruction of the 'CFMEU Code of Conduct for Union Delegates' forms and requiring the publication of the advertisements in the 'Illawarra Mercury' newspaper by stayed until further order. 11 The stay orders were made on the application of the respondents following the filing by them of a Notice of Appeal on 16 April 2007, which appealed against the third and fourth judgments and the orders made on 26 March 2007. 12 As it transpires on 16 April 2007 the applicant also filed a Notice of Appeal, appealing from those parts of the third and fourth judgments which resulted in orders numbers 15 --- 23 inclusive being made on 26 March 2007. By those orders three of the applicant's twelve claims in respect of contraventions of s 298SC(c) of the Act were dismissed, all three claims alleging contraventions by the first, second and fourth respondents of s 298S(2)(a) of the Act were dismissed and all three claims alleging contraventions by the first, second and fourth respondents of s 170NC of the Act were dismissed. 13 The applicant's Notice of Appeal was filed in proceeding NSD 650/2007 whereas the respondents' Notice of Appeal was filed in proceeding NSD 655 of 2007. The respondents' Notice of Appeal was superseded by an Amended Notice of Appeal filed 23 May 2007. 14 As it transpires both the applicant's appeal in proceeding NSD 650 of 2007 and the respondents' appeal in proceeding NSD 655 of 2007 were listed for hearing together before a Full Court on 6 and 7 August 2007. On 7 August 2007 an order was made in proceeding NSD 655 of 2007 adjourning that appeal to a date to be fixed after judgment was handed down in proceeding NSD 650 of 2007. 15 To complete the historical background it should be noted that on 29 August 2007 the applicant filed an application for an extension of time within which to file a Notice of Cross-Appeal in proceeding NSD 655 of 2007. As I understand it, that application is still extant. Effectively, it seeks orders in respect of forms used by the first and second respondents to replace the orders numbered 11 and 12 which I made on 26 March 2007, in the event that my orders for the destruction of such forms were to be set aside. Orders that the first respondent remove from any code of conduct or other instruction given to a delegate by the first respondent any requirement or direction that the delegate ensure that workers on a building or construction site be members of the first and/or the second respondent. Orders that the second respondent remove from any code of conduct or other instruction given to a delegate by the second respondent any requirement or direction that the delegate ensure that workers on a building or construction site be members of the first and/or the second respondent. The appeal is allowed in part. The appeal is otherwise dismissed. 18 The effect of Order 2 was to reverse my findings that the alleged contraventions of s 298SC(c) of the Act, which had been detailed in subparagraphs (b), (f) and (j) at [74] of the third judgment, had not been established. The Full Court held that on Tuesday 17 February 2004 Mr Lane had made a false or misleading representation to Glenn Suter that each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel was obliged to join the first respondent and/or the second respondent in order to work on the Wollongong site. Furthermore, by the action of Mr Lane, the first respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel to join the first respondent and/or the second respondent and, by the same action, the second respondent made a false or misleading representation to Glenn Suter about the obligation of each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel to joint the first respondent and/or the second respondent. Orders 15, 16 and 17 of the Court's orders of 26 March 2007 were impliedly set aside and replaced by Orders 2 and 3(ii) of 5 March 2008. 19 The effect of order 3(i) made by the Full Court on 4 March 2008 was that the alleged contravention of s 298S(2)(a) of the Act referred to in subparagraph (m) of [74] of the third judgment required further consideration, as did the alleged contraventions referred to in subparagraphs (n) and (o). Orders 18, 19 and 20 of the Court's orders of 26 March 2007 were impliedly set aside pending further consideration of those alleged contraventions at least in respect of services said to have been offered by each of Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel. 20 No further consideration of s 170NC was required. 21 Order 3(ii) of the Full Court's orders of 5 March 2008 required consideration of what, if any, further penalties should be imposed on the fourth respondent for the additional contravention of s 298SC(c) of the Act, as found by the Full Court, what if any additional penalties should be imposed on the first and second respondents in respect of their respective contraventions of s 298SC(c) of the Act brought about by the action of the fourth respondent which gave rise to the additional contravention on his part, and what, if any, penalties should be imposed in respect of contraventions of s 298(2)(a) of the Act by the third, first and second respondents, if any, which may now be found to have occurred. In the circumstances it is unnecessary to repeat them. As an aside, I would observe that the index to the Appeal Books which appears behind Tab 1 in Part A and the two volumes comprising Part C of the Appeal Books appear to me to be unsatisfactory. No list of the exhibits (Exhibits A1 --- A31 and R1 --- R13) was incorporated in the index with an indication of the relevant transcript page at which the exhibits were admitted into evidence, nor was there any indication as to whether the exhibits had or had not been reproduced in the appeal books. The extracts from Exhibit A1 (three volumes of documents in strict chronological order) which have been reproduced behind Tab 41 in volume 2 of Part C of the Appeal Books, are, in my view, quite inadequate. I propose to direct that a full list of exhibits be placed on the Court file in respect of proceeding NSD 655 of 2007 to ensure that the Full Court hearing that appeal is not placed at a disadvantage when considering the evidence. Obviously, it will be a matter for the Full Court to decide whether any additional material should be reproduced in supplementary Appeal Books. The relevant paragraphs in the Application were paragraphs 6 and 7 which are set out hereunder in reverse order so as to accord with (m), (n) and (o) above. A declaration that, by the conduct set out in paragraphs 42 --- 45 of the Statement of Claim the Third Respondent contravened section 298S(2)(a) of the Act. 30 The principal object of the Act is to be found in s 3 (see [15] of the third judgment). North J relevantly dissented from the views expressed by the majority. 32 In deciding that further consideration should be given to the alleged contraventions of s 298S(2)(a) of the Act, generally as detailed at [74(m), (n) and (o)] of the third judgment, Buchanan J observed at [85] that when evaluating the factual findings to determine whether or not they established those contraventions 'no reference was made to s 298V or, less directly, to the onus which fell upon the respondents to prove that the presumed intent was not, in fact, present'. 33 Section 298V of the Act was considered by a Full Court comprising Wilcox, Merkel and Finkelstein JJ in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 , which decision was itself considered in detail by Branson J in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 ('MUA v CSL'). 36 MUA v CSL is not on all fours with the present case. In that case the critical issue was whether or not a conclusion could be drawn that a threat to dismiss members of the crew of the CSL Yarra was made for a prohibited reason, or for reasons that included a prohibited reason, namely that the members of the crew were entitled to the benefit of the Maritime Industry Seagoing Award and one or other of the MUA certified agreement and the AIMPE certified agreement ('the industrial instruments') (see at [38]). In the result her Honour found that the onus placed upon CSL by s 298V had been discharged. for the reason that, the person is not a member of an industrial association (relevantly in this case, the first respondent or the second respondent). Section 298S(2)(a) does not appear to me to be engaged if advice, encouragement or incitement is given for reasons that include the reason that the eligible person is not a member of an industrial association. However, as will emerge later the distinction is unimportant in this case. 39 A contravention is only established if the advice, encouragement or incitement given by the alleged contravener was given for the reason that the eligible persons (relevantly now, Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel) were not members of the first respondent or the second respondent. That question will often involve questions of judgment. The presumption imposed by s 298V must be drawn when there is not sufficient evidence to permit the judge to determine what are the true facts, that is, true in the sense of being more probable than not. Once a judge has sufficient evidence to determine the true facts he or she cannot resort to s 298V as an alternative to finding facts (at [53]-[54] and [60]). 41 The conduct of which the applicant complains in paragraph 42 of the Statement of Claim and which the applicant submits was for the proscribed reason within the meaning of s 298S(2)(a) of the Act was not the conduct which was proved. The conversation which took place in the car park under the building at the Fairy Meadow site on the morning of Wednesday 18 February 2004 involved Mr Casper saying to Mr Djukic of Innovation Interiors words to the effect 'I don't want these four people on site. I was abused and swore at. ' (see [268] of the third judgment). In paragraph 42 of the Statement of Claim no mention was made of 'I was abused and swore at. Rather, Lanskey's list of Pro Finish Interiors workers was updated by Mr Casper, with the addition of the names of Tony Morgan, Geoff Harnett and Albert Lilley, and then copied and adapted by him by the addition of asterisks on the copy, which he had made, against the names of Barry Sindel, Norm Philipp, Reinhard Philipp, Tony Morgan, Geoff Harnett and Albert Lilley. 66 In point of fact, Pro Finish Interiors had no involvement at all in the work undertaken by these men upon their return to or arrival at the Fairy Meadow site on 18 February 2004. Each of the men, apart from Barry Sindel, appears to have invoiced Innovation Interiors for the work performed by them on 18 February 2004 at the rate of $33 per hour plus GST (cf the rate of $35 per hour plus GST previously charged to Pro Finish Interiors for work at the Fairy Meadow site). Barry Sindel only charged $32 per hour plus GST. Bryan Harnett, Geoff Harnett's son, who commenced working for Innovation Interiors at the Fairy Meadow site on 19 February 2004, also charged $33 per hour plus GST. 67 Under s 8 of A New Tax System (Australian Business Number) Act 1999 (Cth) it was possible for entities that carried on enterprises in Australia to be provided with an Australian Business Number ('ABN'). 'Enterprise' covered all business and trading activities. However, activities in a person's capacity as an employee were excluded from those of an enterprise. 68 Each of Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel, Tony Morgan, Albert Lilley, Geoff Harnett and Bryan Harnett, carried on business as part of entities registered with their own ABNs. Norm Philipp carried on business in partnership with his wife as N & M Philipp under ABN 19736995679, Reinhard Philipp carried on business in partnership with his wife as R & M M Philipp under ABN 26940466534 and Anthony Summers carried on business in partnership with Hua Ping as Ruse Linings under ABN 52589917303. Barry Sindel carried on business on his own account under ABN 48687228924. However, the applicant submits that the individual partners or, at least in the case of Ruse Linings, Mr Summers, would be an eligible person. It seems clear to me that, whilst Mr Summers may have been an 'eligible person', nevertheless, there could be no 'discriminatory action' within the meaning of s 298S(1) in relation to him unless there was evidence that he had offered his services, as opposed to those of Ruse Linings, to, relevantly, Innovation Interiors. There is no such evidence in the present case. It seems clear that in relation to Mr Summers, his services were simply not on offer. Rather, Ruse Linings, which was not an eligible person, offered its services on the basis that Mr Summers would be the person undertaking the performance of its contractual obligations. 293 Similar considerations would apply in respect of the partnerships of N & M Philipp and R & M M Philipp referred to at [68]. Barry Sindel was in a different position as he was a sole trader. They were each partners in firms which offered services, but such firms were not eligible persons within the meaning of s 298S(1) of the Act. His involvement in work at the Fairy Meadow site came to an end in January 2004 after he had executed work at the site as a subcontractor to Pro Finish Interiors. I was abused and swore at'. On the contrary, a contract made with a partnership is made with each of the partners. I can see no reason why one partner could not, for the purpose of s 298S, be an eligible person to whom the section might apply. Action to discriminate against such a person or encourage or incite someone not to use the services offered by the partnership (including by the individual partner) falls, it seems to me, within the statutory prohibition. I was abused and swore at. I was abused and swore at. " Remember you said that? Just that part of the conversation. The work that they then carried out was plastering work in the loft or penthouse level of Block A. These four men were inducted by Mr Casper at the Fairy Meadow site on 19 January 2004. Mr Summers also worked at the Fairy Meadow site for Pro Finish Interiors in late January and early February 2004. He was inducted by Mr Casper on 21 January 2004. 50 The men who arrived at the Fairy Meadow site on the morning of Wednesday 18 February 2004 to undertake work for Innovation Interiors were Norm Philipp, Reinhard Philipp, Barry Sindel, Anthony Summers, Tony Morgan, Geoff Harnett and Albert Lilley (see [61] of the third judgment). The group did not include Mr Norman Philipp Jnr. Shortly thereafter they were summoned to the site shed in the car park level of the building for induction. Notwithstanding that Norm Philipp, Reinhard Philipp, Barry Sindel and Anthony Summers had previously been inducted, they were required by Lanskey to undertake a further induction. On this occasion it was probably carried out a little later. Following the induction meeting on 18 February 2004, the men returned to work on the site. 52 Counsel for the respondents, Mr Pearce, suggested to Mr Djukic in cross examination that the conversation in the car park on the morning of 18 February 2004 which he had attributed to Mr Casper was in fact a conversation which Mr Djukic had with Mr Rowland, Lanskey Constructions Pty Limited's site manager at the Fairy Meadow site. Lanskey was the head contractor at the site (see [3] of the third judgment). 53 Mr Djukic denied that the conversation he had recounted as having taken place with Mr Casper was in fact a conversation he had with Mr Rowland. Mr Djukic's evidence was that he couldn't remember one way or another whether he had a conversation with Mr Rowland about 'these four workers' on 18 February 2004 (transcript p582). 54 In the course of Mr Casper's evidence on 5 September 2006 he was cross examined by senior counsel for the applicant about the conversation with Mr Djukic in the car park at the Fairy Meadow site on the morning of 18 February 2004. Mr Casper denied that the conversation took place. I was abused and swore at? The position was, wasn't it, that you didn't want the four workers on site who were not members of a union? 56 I find that words to the effect of 'I don't want those four people on site. I was abused and swore at. ' were spoken by Mr Casper to Mr Djukic in the car park underneath the four tower buildings at the Fairy Meadow site somewhere between 8:00 am and 9:00 am on Wednesday 18 February 2004. The timing of the conversation is important for the purposes of the alleged contraventions of s 298S(2)(a) of the Act, in the context of what happened later that morning. 57 At some time or other Norm Philipp, Reinhard Philipp, Anthony Summers, Barry Sindel and Norman Philipp Jnr had all been members of the Union (see [87] of the third judgment). However, by 18 February 2004 Anthony Summers was no longer a member of the Union (see [87] of the third judgment), nor was Norm Philipp a member of the Union (see [92] of the third judgment). When inducted on the morning of 18 February 2004 Norm Philipp conceded that he may have said to Mr Casper 'You know that I'm in the union', in the belief that his name would still be recorded on the union's books (see [93] of the third judgment). 58 As at 9:13 am on Wednesday 18 February 2004 Mr Casper would appear to have been uncertain as to the membership status of the men who arrived to work for Innovation Interiors on that day. His enquiry of the Union office at that time included 'Please check their union memberships and financial status' (see [94] of the third judgment). 59 The response which Mr Casper received from the Union's office to his inquiry was transmitted to him by facsimile at about 10:48 am on Wednesday 18 February 2004. 60 Mr Casper was a thorough and disciplined site delegate for the Union at the Fairy Meadow site. On 28 March 2003 he had signed the 'CFMEU Code of Conduct for Union Delegates' form which required him, to the best of his capacity, to 'ensure that all workers on site are financial members of the relevant union' (see [57] of the third judgment). Whilst his policy may have been to give workers at the site 'a chance to join on their own if they would like[,] so they don't have to join immediately' (see [119] of the third judgment), Mr Casper was a cautious man who, in my judgment, would not have taken action to insist on union membership, before the facts in relation to such membership were known to him. It is highly improbable that at or before 9.00 am on Wednesday 18 February 2004, before he made his inquiry of the Union office as to the membership and financial status of the men who arrived to work for Innovation Interiors on that day, including Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel, he would have advised, encouraged or incited Mr Djukic to refuse to make use of, or agree to make use of plastering services offered by those men or, in the case of Norm Philipp, Reinhard Philipp and Anthony Summers, their respective partnerships, because they were not members of the Union. At the time when Mr Casper spoke to Mr Djukic in the car park, he was uncertain as to their membership status. It was not until 10:48 am that he had the necessary information in respect of their membership and financial status to take what he may have considered to be, appropriate action. 61 It is appropriate to repeat my findings in respect of the credibility of the third respondent. He seemed to me to be quite articulate. However, his written word suggested that he was not particularly literate. I find it difficult to accept that Mr Casper was prone to excessive swearing. Unlike Mr Lane, whose evidence smacked of artful reconstruction and lacked credibility, I was generally impressed by Mr Casper's evidence. Apart from other considerations, Mr Casper had a proven track record of seeking to secure and securing new members for the Union and of having unfinancial members brought up to a financial status. 97 In this context it may be noted that this was not the first occasion when Mr Casper had submitted a list of workers' names to the CFMEU office to ascertain their Union membership and financial status. He assiduously pursued the identity of workers who were not members of the Union. At 10.26 am on 18 July 2003 Mr Casper had submitted a list of names to the CFMEU office under the heading 'INNOVATIONS (sic) INTERIORS' with five column headings reading 'SURNAME', 'FIRST', 'D.O.B. ', 'UNION #' and 'FINANCIAL'. The columns under the headings 'UNION #' and 'FINANCIAL' as submitted by Mr Casper to the CFMEU office were blank at the time. I would like to check these fellows Financial Status and have it ASAP. Where Union dues were outstanding, that was also noted. The facsimile response from the CFMEU office to Mr Casper's facsimile of 18 July 2003 was transmitted to him at 11.35 am on 18 July 2003. 98 Another similar document headed 'INNOVATION INTERIOR (sic) GYPROCK' would appear to have been brought into existence by Mr Casper in about November 2003. That document had column headings reading 'NAME', 'DOB' and 'Member #'. There appear to have been approximately 29 names recorded on that list. The copy of the list which is in evidence has been edited with notations, presumably added by staff at the CFMEU office or by Mr Casper with the assistance of the CFMEU office, where Union dues are said to have been owing. In other instances the letters 'OK' have been added against names or the word 'Deal' has been added against a name. Some seven or eight names appear to have been deleted, however it is unclear from the photocopy which is in evidence whether the marking indicates an intended deletion of a name from the list or, alternatively, the application of a coloured highlighter for some reason which, in the photocopy, has come out in black as if it were an intended deletion. By Friday 25 of July 2003 he had secured each of them as new members of the Union. On that date he issued receipts to each of them in respect of the payment of their respective Union dues of $218 each. 115 At some stage four other workers joined Innovation Interiors workforce who were not members of the Union namely Terry King, Nikola Mijakovac, Gary Kernan and Zarko Romic. By 22 September 2003 each of these Innovation Interiors' workers had become members of the Union, receipts having been issued to them on that date for payment of their Union dues of $225 each. 116 On 22 September 2003 Mr Casper also issued a receipt to Stevo Pjevac who had been recorded on his list of Innovation Interiors' workers as a non-member. Apparently Mr Pjevac had joined the Union on 29 May 2000 and resigned in 2001 owing money to the Union. With the approval of Mick Lane, Mr Pjevac paid $225 of his outstanding dues totalling $360, rendering him paid up and 'OK' to 1 April 2004 as a result of a 'deal'. It would appear that Mr Pjevac's payment of $225 was effected by an Innovation Interiors' cheque. 117 Another Innovation Interiors' worker whose name was recorded upon one of Mr Casper's running lists for that company was Dean Webb. It would appear that on 20 November 2003 Mr Casper issued a receipt to Dean Webb for the payment of $225 covering his joining fee and six months dues as a new member of the Union. On the same day, Mr Casper issued a receipt to Mr Kane Rogers, another Innovation Interiors' worker, for $225 to cover his joining fee and his dues for the first six months of his membership. 118 On 26 November 2003, Mr Casper received a payment of $190 from Joe McNamara, another Innovation Interiors' worker, recording on his receipt 'Deal as per Mick Lane. Credit Bal OK to 1/4/04'. He said that he worked hard to enrol all of the workers, who were eligible to join the CFMEU, into the Union as members. I was abused and swore at. 67 Any presumption arising under s 298V of the Act, as to the reason for Mr Casper saying to Mr Djukic words to the effect 'I don't want these four people on site' or 'I don't want these four people on site. I was abused and swore at. ', from the alleged reason contained in paragraph 45 of the Statement of Claim, namely 'because each ABN worker was not a member of the First Respondent and/or Second Respondent' has been satisfactorily rebutted. 68 I am satisfied that the reason proffered in paragraph 45 of the applicant's Statement of Claim was not the operative reason for Mr Casper saying what he said to Mr Djukic, nor was it a reason for what he said or any part thereof. Mr Casper was too smart to make such a request for the reason suggested by the applicant in circumstances where the full facts in relation to the Union membership and financial status of each of the workers in question were not known to him. 69 Were it necessary for me to do so I would find that the operative reason for Mr Casper's statement to Mr Djukic 'I don't want these four people on site' was, more probably than not, that he believed that he had been abused and sworn at by the workers in question when they were re-inducted at the Fairy Meadow site on the morning of Wednesday 18 February 2008. 70 No relevant contravention of s 298S(2)(a) of the Act by Mr Casper has been established. 71 Orders should be made dismissing the claims in respect of the alleged contraventions of s 298S(2)(a) of the Act generally in the same terms as Orders 18, 19 and 20 of 26 March 2007, which, as previously observed, were impliedly set aside by the Full Court's orders of 5 March 2008 at least in respect of services said to have been offered by Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel. 72 In the circumstances, there is no occasion for considering penalties that might be imposed on the first, second and third respondents arising out of Order 3(i) of the Full Court's orders of 5 March 2008. 73 All that remains is to consider what, if any, penalties should be imposed on the first, second and fourth respondents as a result of, or arising out of, Order 2 as made by the Full Court, where extra findings of contraventions of s 298SC(c) of the Act on 17 February 2004 were made. In this regard it is unnecessary to restate the additional background facts, evidence and specific factual findings which were set out in detail in the third and fourth judgments. 76 The view that I took of the contraventions in respect of which penalties were imposed on 26 March 2007 (see [59]-[65] of the fourth judgment) was that the conduct of Mr Lane was considerably more reprehensible than that of Mr Casper. I have previously described Mr Lane's conduct on 18 February 2004 as 'deliberate' and 'contumacious' (at [60] of the fourth judgment), and his contraventions on that day as 'extremely serious' (at [64] of the fourth judgment) and as a 'flouting' by him of the relevant legal requirement (s 298SC(c)) directed at ensuring freedom of association (at [63] of the fourth judgment). However, in the case of Mr Lane it seemed to me (see at [59]) that, where he had committed two contraventions which arose out of the one course of conduct, the starting point should be to determine the appropriate penalty for each contravention of the statutory norm, due regard being had to the apparent degree of overlap, the aggregate figure then being considered with a view to ensuring that it provided an appropriate response to the conduct which led to the breaches. In this way a total figure of $2,000 was derived in respect of appropriate penalties to be imposed on Mr Lane and that amount was then divided equally between each of the two contraventions that had been found. Similarly, in the case of the derivative contraventions of the first and second respondents by virtue of Mr Lane's conduct (see [77]-[79] of the fourth judgment). 77 The meeting between Mr Lane and Mr Suter on Tuesday 17 February 2004, which led to the Full Court's decision that Mr Lane committed a contravention of s 298SC(c) on the afternoon of that day (see [16]-[18] above) was the subject of detailed consideration at [207]-[243] of the third judgment. In his affidavit sworn 3 August 2006 Mr Lane disputed that Exhibit A10 provided an accurate account of what had been said at that meeting. In relation to the conversation recounted at [226] of the third judgment, which was, relevantly, the subject of a finding at [242] (see also [61] of the fourth judgment), Mr Lane denied that the relevant words had been used. 78 In my opinion, the false and misleading representation made by Mr Lane to Mr Suter on 17 February 2004 in relation to the obligation of Messrs Norm Philipp, Reinhard Philipp, Anthony Summers and Barry Sindel to join the first respondent or second respondent in order to work on the Wollongong site, cannot be treated as arising out of the same course of conduct which led to the contraventions committed by Mr Lane on the following day in relation to the Fairy Meadow site. 79 The two sites were different as were the two head contractors. Yet Mr Lane's motivation was the same, namely, to deny people who were not members of the Union an opportunity to work as plasterers in the Illawarra region of New South Wales. 80 Mr Lane's representation, of 17 February 2004 was equally as deliberate, contumacious and serious and involved a similar flouting by him of the relevant legal requirement directed at ensuring freedom of association, as the representations made by him on 18 February 2004 which gave rise to the contraventions of s 298SC(c) previously found. 81 Since the question of penalty was last addressed by me in this matter there have been two relevant decisions of the Full Court in respect of the determination of penalties for contraventions of the Act. These are Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 ; (2008) 165 FCR 560 ('Australian Ophthalmic Supplies') a decision of Gray J, Buchanan J and myself of 20 February 2008 and Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 ('Mornington'), a decision of Gyles, Stone and Buchanan JJ of 7 May 2008. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. The punishment must be proportionate to the offence and in accordance with the prevailing standards of punishment: R v Hunter (1984) 36 SASR 101 at 103. Therefore the circumstances of the offence or contravention are especially important. The penalty must recognise the need for deterrence, both personal and general. In regard to personal deterrence, an assessment must be made of the risk of re-offending. In regard to general deterrence, it is assumed that an appropriate penalty will act as a deterrent to others who might be likely to offend: Yardley v Betts (1979) 22 SASR 108. The penalty therefore should be of a kind that it would be likely to act as a deterrent in preventing similar contraventions by like minded persons or organisations. If the penalty does not demonstrate an appropriate assessment of the seriousness of the offending, the penalty will not operate to deter others from contravening the section. However, the penalty should not be such as to crush the person upon whom the penalty is imposed or used to make that person a scapegoat. In some cases, general deterrence will be the paramount factor in fixing the penalty: R v Thompson (1975) 11 SASR 217. In some cases, although hardly in this type of contravention, rehabilitation is an important factor. For a contravention of these sections the minimum penalty which addresses punishment and deterrence, both personal and general, will be appropriate. Where one act may involve a number of contraventions, as in this case, it would be generally inappropriate to impose separate penalties because almost inevitably that would offend against the totality principle as known to the criminal law. ... 54 The ultimate control on the judicial sentencing discretion is the requirement that the sentence be proportionate to the gravity of the offence committed. In pursuit of other sentencing purposes, a judge may not impose a sentence that is greater than is warranted by the objective circumstances of the crime. Both proportionality and consistency commonly operate as final checks on a sentence proposed by a judge (per McHugh J in Markarian v The Queen (2005) [2005] HCA 25 , 228 CLR 357 at [83] (Markarian v The Queen); see also Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 472). 55 The acceptance of the role of instinctive synthesis in the judicial sentencing process is not opposed to the concern for predictability and consistency in sentencing that underpins the rule of law and public confidence in the administration of criminal justice. The synthesising task is conducted after a full and transparent articulation of the relevant considerations including an indication of the relative weight to be given to those considerations in the circumstances of the particular case (per McHugh J in Markarian v The Queen [2005] HCA 25 ; 228 CLR 357 at [84] ). There should not be such an inequality as would suggest that the treatment meted out has not been even-handed ... However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The totality principle 66 The totality principle is designed to ensure that the aggregate of the penalties imposed is not such as to be oppressive or crushing (per Tracey J in Kelly v Fitzpatrick 166 IR 14 at [30]). 67 In Safeway No 4 [2006] FCA 21 ; [2006] ATPR 42-101 Goldberg J said: 82. The "totality" principle requires the Court, after determining an appropriate ... penalty for specific ... contraventions in accordance with proper principles, to review the total of the ... penalties and consider "whether the aggregate is 'just and appropriate'". ... The totality principle finds its genesis in the criminal law but it has also been applied in the context of fixing penalties for contravention of the [Trade Practices] Act: Trade Practices Commission v Allied Mills Industries Pty Ltd (1981) 37 ALR 256 at 258; [Australian Competition and Consumer Commission] v McMahon [Services Pty Ltd [2004] ATPR 42-031] at [90]. ... I have ... borne in mind the totality principle. That is, I have ensured that having determined an appropriate penalty for each contravention, I have, as a check considered whether the aggregate is appropriate for the various acts of contravening conduct involved: McDonald v The Queen [1994] FCA 956 ; (1994) 48 FCR 555 and Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) ATPR 41-562 at 43,817. The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences". 70 Gummow, Callinan and Heydon JJ also emphasised at [26] that judges of first instance "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected". In addition reference should be made to the observations of Stone and Buchanan JJ in respect of the flexibility conferred upon a sentencing judge in Mornington at [60]-[63]. 85 In Mornington the trial judge had imposed ten penalties of $17,000 each, a total of $170,000. The relevant findings were based upon an agreed statement of facts. Contraventions had been alleged in respect of s 400(5) and 792 of the Act. In respect of six contraventions by Sharon Ann Thompson the penalties, at $17,000 each, totalled $102,000, which was approximately three times the maximum penalty for any one contravention. Gyles J concluded that in respect of Thompson a total penalty of $34,000 rather than $102,000 would have been appropriate. His Honour was of the opinion that the primary judge had not applied the totality principle to the Thompson contraventions. 86 Stone and Buchanan JJ were not of a like mind. Their observations in respect of Ground 1 in the appeal were to be found at [39]-[68] of their reasons. In the end he appears to have made a deliberate choice to punish the contraventions involving Ms Thompson as separate contraventions and at the same level as the others. This may represent a stern approach but we do not think it can be said that an appealable error was thereby committed. Accordingly we dismiss ground 1 of the appeal. There are no facts warranting any discount from the maximum penalty for the contravention under s 298U(a)(ii) of the Act. 88 In my opinion the aggregate penalty for the three contraventions of s 298SC(c) of the Act by Mr Lane is just and appropriate. The totality principle does not require any further reduction. The aggregate figure of $4,000 provides an appropriate response to his conduct which resulted in those contraventions. 89 In respect of the first and second respondents' contraventions which, as I have previously remarked, are constructive in nature, reference should be made to what has previously been said at [66]-[79] of the fourth judgment. 90 Having regard to the matters there referred to and in addition Mr Lane's conduct of 17 February 2004, an appropriate penalty would be a total of $15,000 for each of the first and second respondents in respect of their contraventions of Part XA of the Act which have been found to have occurred by the actions of Mr Casper and Mr Lane. These penalties should be apportioned in the manner indicated at [79] of the fourth judgment with additional penalties of $5,000 each imposed on the first and second respondents by reference to the contraventions referred to in the declarations of the Full Court (see [16] above) which have now become embodied in Orders 1(k) and 1(l). I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

scope and application of the reversal of onus under s 298v imposition of penalties for additional contraventions of s 298sc(c) of the act consideration of the totality principle workplace relations

It considers that it is appropriate that the appellate jurisdiction of the Court in relation to this appeal should be exercised by a Full Court. The learned Magistrate had before him an application for judicial review of the decision of the Migration Review Tribunal ("the Tribunal") that it could not entertain the appellant's application because it had been lodged outside the time prescribed for the purposes of s 347(1)(b) of the Migration Act 1958 (Cth) ("the Act "). That time was prescribed by reg 4.10(1)(a) of the Migration Regulations. It came on for hearing before me in Sydney on 11 August 2006. The application was listed before a single judge pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). Leave to appeal was needed because the Magistrate's decision had been interlocutory in nature. The appellant was represented by Counsel, who, I was informed, had only recently been briefed in the matter. He indicated that the appellant wished to abandon the grounds of appeal which appeared in the Notice of Appeal and to substitute alternative grounds which had not been argued in the Federal Magistrates' Court. Counsel for the Minister consented to leave being granted to appeal and for an amended Notice of Appeal to be filed and I so ordered: c.f. SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 ; (2006) 150 FCR 448. I directed that the parties file and serve written submissions on the issues raised by the new grounds. That has now been done. 2 A directions hearing was held on 5 October 2006. The parties were agreed that I should not now proceed to determine the appeal. The appellant's preference was that the matter should be remitted to the Federal Magistrates' Court so that the issues raised by the new grounds could be argued and ruled on. Counsel for the Minister sought an order referring the matter to a Full Court for hearing and indicated that the Minister would not have consented to leave being granted to amend the appeal grounds had the appellant then intimated that she wished to have the matter remitted to the Federal Magistrates' Court. Both parties were agreed that there was no dispute as to relevant facts and that the only matters to be agitated on the appeal were questions of law. 3 Having considered the matter I have determined that the appropriate course is for the appeal to be dealt with by a Full Court. One of the new grounds of appeal is that reg 4.10(1)(a) of the Migration Regulations is ultra vires the Migration Act 1958 . So far as I am aware this is the first time that a challenge has been made to the validity of that regulation. I say no more than that the appellant's contention, as developed in her written submissions is, at least, fairly arguable. It is now almost a year since the decision of the Tribunal was made. Were the matter to be remitted to the Federal Magistrates' Court there would, inevitably, be a delay in the hearing and determination of the application and the strong prospect, regardless of outcome, that the matter would return to this Court. In these circumstances, the preferable course, in my opinion, is that the appeal should be heard and determined, as soon as practicable, by a Full Court. The consequence of the opinion which I have formed is that the appeal will be heard by a Full Court: see s 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth).

appeal new grounds of appeal whether leave should be granted to raise new grounds whether matter should be remitted to federal magistrates court appeal and new trial

Bedrock was placed into liquidation on 4 June 2009 by way of creditors' voluntary winding up. Mr Blair Alexander Pleash was appointed liquidator of Bedrock on that day. The respondents informed Mr Pleash of their intention to make the application which is before me today. The respondents served all relevant Court documents on Mr Pleash well in advance of today's hearing. Mr Pleash has not indicated one way or the other whether he consents to or opposes the orders which the respondents seek today. The respondents have also applied to join John Howard Austin, who, it is said, was the principal person with whom they dealt on behalf of Bedrock insofar as the transactions which are relevant to these proceedings are concerned. Earlier today, I made orders joining Mr Austin as the third respondent in the proceedings and also as a cross-respondent in the Cross-Claim foreshadowed by the respondents. In the principal proceedings, the applicant alleges that the first respondent was guilty of misleading and deceptive conduct in respect of the sale of certain compressors under the brand name Atlas Copco . The second respondent is sued as an accessory to the first respondent's breaches. In substance, and without admissions, of course, the respondents contend that they are innocent parties in whatever contravening conduct took place in the sense that the compressors sold by the first respondent were all obtained, one way or another, from Bedrock through the agency of Mr Austin. Bedrock is a company which has no assets and may have liabilities of the order of $430,000. It is quite clear that there is no prospect of the respondents recovering any money from Bedrock. In the proposed Cross-Claim, the respondents allege that Mr Austin, and thus Bedrock, represented to them that the compressors sold to the first respondent by Bedrock were both compliant with AS 1210 and otherwise appropriately certified by State WorkCover authorities. On the respondents' case, it is Mr Austin and Bedrock who are the real perpetrators of the contraventions about which the applicant complains in the proceedings. Of course, this does not mean that the respondents will not, ultimately, be held liable to the applicant for what has occurred, but it is an important complexion on the case which the respondents urge upon the Court for present purposes. The evidence tendered in support of the present application establishes that there is a serious or substantial question to be tried on the respondents' proposed Cross-Claim against Bedrock and against Mr Austin. Compressors of the type sold by the respondents are used on mining sites throughout the country and are subject to certification, as I have already mentioned, by State WorkCover authorities. That certification is an important occupational, health and safety regulatory mechanism put in place by State legislatures in order to ensure the safety of workers on those sites. There is, therefore, a substantial public interest in ensuring that, if the respondents' allegations are accepted by the Court, the true perpetrators of what has occurred be identified by the Court and be made the subject of appropriate orders. Counsel for the respondents has submitted that the relevant principles which should guide me in considering his clients' application were summarised by Lee J in Executive Director of the Department of Conservation and Land Management v Ringfab Environmental Structures Pty Ltd [1997] FCA 1484. The purpose of such a provision is to prevent a company in liquidation being subjected to actions that are expensive and, therefore, carried on at the expense of the creditors of the company and, perhaps, unnecessarily: Fielding v Vagrand Pty Ltd (In Liquidation) (1993) 11 ACLC 172 at 174; Ogilvie Grant v East (1983) 1 ACLC 742 at 744; Maher v Taylor (1984) 8 ACLR 931 at 934; Re A J Benjamin Ltd (In Liquidation) (1969) 90 WN (Pt 1) (NSW) 107 at 110. In determining whether leave should be granted, the Court considers whether the balance of convenience lies in allowing the applicant to proceed by way of action to judgment, or whether the applicant should be left to pursue his claim by lodging a proof of debt with the liquidator. The matter is one of discretion and the onus is on the applicant to demonstrate why it is more appropriate, in respect of a particular claim, to proceed by way of action: Fielding v Vagrand at 174; Ogilvie Grant v East at 744; Stewart v Intercity Distributors Limited (1960) NZLR 944 at 946. For leave to be granted, it must be shown that there is a serious or substantial question to be tried: Oceanic Life v Insurance & Retirement Planning Services Pty Ltd (In Liquidation) (1993) 11 ACLC 1157 at 1159; Olgilvie Grant v East at 744; and a real dispute between the parties: Fielding v Vagrand at 175; Zempilas v J N Taylor Holdings Ltd (In Provisional Liquidation) (No 4) (1991) 9 ACLC 297 at 298; Capita Financial Group Ltd v Rothwells Ltd (No 2) (1989) 7 ACLC 634 at 637. Leave will not be granted where the applicant does not have a genuine claim or where the claim would be futile. Hence, leave has been refused where the claim has been for unliquidated damages arising otherwise than by reason of a contract, promise, or breach of trust, on the basis that by virtue of the joint application of s 82(2) Bankruptcy Act 1966 (Cth) (" Bankruptcy Act ") and s 553(2) of the Corporations Law (or equivalent provisions), such a claim would not be provable in the winding up of an insolvent company unless judgment had been entered prior to the order for winding up: Re Autolook Pty Ltd; O'Brien v Bills (1984) 2 ACLC 30 at 33, Re A J Benjamin Ltd (In Liquidation) at 110; Page v Commonwealth Life Assurance Society Ltd (1935) 36 SR (NSW) 85 at 99; In re Southern Cross Coaches Ltd (1932) 49 WN 230; Cutten and Harvey v Mount (1989) 50 SASR 81 ; Fielding v Vagrand at 176-177; cf Re Berkeley Securities (Property) Ltd [1980] 3 All ER 513. As a result of amendments to the Corporations Law in 1992 (see ss 553 and 553E), s 82(2) of the Bankruptcy Act is no longer imported into the Corporations Law , and a claim for damages against Nericon would no longer be futile for that reason. However, nonetheless it may be inappropriate in all the circumstances to grant leave in respect of such a claim. The orderly winding up of Nericon and the interests of Nericon's existing unsecured creditors must also be taken into account: Oceanic Life Ltd v Insurance and Retirement Planning Services Pty at 1159. In a situation such as the present, where the liquidator has no funds to conduct a defence and there is little prospect of funds becoming available and the company is not insured against the damages sought, there is strong reason for refusing leave: Maher v Taylor at 934; Re A J Benjamin at 109-110. Furthermore, claims against Nericon cannot be sustained unless CALM succeeds in its claims against the first and second respondents. With respect to the declaratory and injunctive relief, it is a factor in favour of granting leave that the relief cannot be obtained otherwise than by a successful application to the Court: Vagrand Pty Ltd (In Liquidation) v Fielding (1993) 11 ACLC 411 at 414; Fielding v Vagrand at 177; Wyley v Exhall Coal Mining Co Ltd (1864) 33 Beav 538. The real purpose of the application to join Nericon is to obtain orders that will bind it in the event that the claims against the first and second respondents are made out. Another matter to consider in granting leave is that the joinder would enable the liquidator to participate in the mediation process provided by this Court and being used by the existing parties. However, these purposes can be achieved without Nericon actively participating in the proceedings as a respondent. It is likely that the declaratory and injunctive relief sought by CALM against Nericon could be obtained by consent, if CALM succeeded against either the first or the second respondent. On the material before the Court it is apparent that at least the second respondent will contest the applicant's claims. In view of the undertaking given by the liquidator, CALM's position is protected as far as Nericon is concerned and no interlocutory proceeding against Nericon is required. If circumstances change CALM may apply to vary the order I propose to make. Meanwhile, if it considers it appropriate CALM may lodge a proof of debt with the liquidator. A grant of leave can be made subject to conditions directed at minimising interference with the orderly winding up of the company in liquidation: Oceanic Life Ltd v Insurance and Retirement Planning Services Pty Ltd at 1159. In the present case, it is appropriate in all the circumstances that leave be granted to join Nericon to the proceedings, the proceeding against Nericon being restricted to claims for declaratory and injunctive relief and not to include a claim for damages or account of profits. In addition, Nericon will not be required to participate in the proceeding by filing a defence or taking any other step. The fact that a money judgment may not be ordered is not determinative. The prospect of making declarations may justify the grant of leave. One matter which is often important is whether the applicant for leave should be left to pursue his claim by lodging a proof of debt. In the present case there will almost certainly be difficulties in the respondents successfully lodging a proof of debt in the liquidation of Bedrock. However, this is not a significant matter in this case, since there is no prospect that any funds will be available to meet such a proof in any event. Counsel has also drawn my attention to the observations made by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382. At 388, his Honour said that, in many cases, there will be a public interest in ensuring that all errant entities are identified and dealt with. This is particularly the case where the subject matter of the contraventions is serious and involves matters of the kind in play here, that is to say, the safety of workers on mine sites. Although initially I had some reservations about granting the leave which the respondents seek, the respondents have now satisfied me that it is appropriate, in the present case, to make an order in the terms of the usual order made in cases such as this. I am prepared to make those orders because the subject matter of the contraventions alleged against Bedrock is serious and involves an important matter concerning the regulation of workers' safety and should, therefore, receive the consideration of the Court in the way contemplated by the reasoning of Lee J in Ringfab Environmental Structures Pty Ltd [1997] FCA 1484 , notwithstanding the fact that the Court may not order any monetary judgment in favour of the respondents against Bedrock and notwithstanding the fact that Bedrock has no assets. For these reasons I propose to make the orders sought. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

application for leave to proceed against a corporation in liquidation no prospect of recovering a money judgment public interest in pursuing errant entities prospect of making declarations sufficient to justify leave being granted leave to proceed granted corporations

They arrived in Australia on 29 January 2003. On 25 February 2003 they applied for a protection visa (class XA). Only the husband made claims to be a refugee. The appellant wife was included as a member of the family unit. For convenience, the appellant husband shall be referred to as the appellant in these reasons for judgment. 2 On 13 March 2003, a delegate of the first respondent refused the visa application. The appellant applied to the Refugee Review Tribunal ("the RRT") for review of that decision. On 30 July 2004, the RRT handed down its decision affirming the decision not to grant protection visas. On 25 August 2004, the appellant filed an application, pursuant to s 39B of the Judiciary Act 1903 (Cth), in the Federal Magistrates Court seeking review of the RRT's decision. 3 The Federal Magistrates Court heard the application for review on 2 May 2005 and delivered judgment dismissing the application on the same day. The appellant now appeals from that decision. 4 I share the concerns expressed by the learned Federal Magistrate about this case. The appellant appears genuinely to fear for his safety if he should return to India. The RRT accepted this, but found that there was no Convention reason behind these fears. The Federal Magistrate found no error in the RRT's decision. For the reasons I am about to give, I find no error in the judgment of his Honour or in the decision of the RRT. He explained that he had borrowed a substantial sum from money lenders for his business. He was unable to keep up with the payments of this debt. 6 The appellant claimed to be an active member of a political party. He claimed that one of the leaders of the money lenders has strong links with a political party opposed to his own and to extremist groups. 7 The appellant claimed that, after he failed to pay his debts, the money lenders threatened to beat him up. Some months later, they came to his store and beat him severely enough that he required hospitalisation. He reported this incident to the police and there were no further assaults at that time. 8 With assistance, he obtained a visa for Australia and he and his wife came here leaving their young children in the custody of grandparents. The appellant hoped he would be able to earn sufficient money in Australia to repay the loan but he has been unable to do so. His family in India has received threats saying that he will be harmed if he returns to India. It concluded that he had a genuine fear of persecution and there was a real chance he would suffer serious harm were he to return. The RRT found, however, that the appellant had failed to demonstrate that the persecution he feared was for one the five reasons enumerated (race, religion, nationality, membership of a particular social group and political opinion) in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees ("the Convention"). The RRT was not satisfied that there was "any nexus at all" between the harm feared by the appellant and any Convention reason. The RRT therefore concluded that, under s 91R(1)(a) of the Migration Act 1959 (Cth) ("the Act"), the appellant was not eligible for a protection visa. 10 The RRT noted that the appellant's own testimony at the hearing supported its conclusion. The appellant was asked directly whether his political activities had anything to do with his problems with the money lenders and he acknowledged that they did not. He submitted brief written contentions of fact and law in which he argued that there was a nexus between the harm he feared and his political association. In these contentions, he stated that, although the initial cause of his problems for his difficulties was his debt, the money lenders will use their political affiliations to harm him. 12 His Honour held that the RRT had applied the law correctly and that its findings were open to it on the evidence. Accordingly, he dismissed the application for review. He appeared in person today and reiterated the claims he made before the RRT and the Federal Magistrates Court. In particular, he submitted that the money lenders who were pursuing him were connected with political and criminal groups and that he would not be at risk if he were part of those groups. The RRT considered these claims and found that there was no relevant connection between the persecution the appellant feared and any Convention reason, including persecution on the ground of political opinion. It was plainly open to the RRT on the evidence to so find. There is no error of law revealed in the RRT's reasons. 14 The Notice of Appeal purported to raise nine grounds. These grounds were not particularised. A number of the grounds are no more than citation of cases. The appellant has not explained how any these cases are relevant to this appeal. I am unable to discern how they would help the appellant. 15 The appellant also claimed that the Federal Magistrate failed to consider that, given the situation in his country, he would face persecution in India. This claim is incorrect. The RRT and, thus, his Honour accepted that there was a real chance that the appellant would suffer serious harm if he returned to his home town and was unable to repay his debt. The difficulty, so far as the appellant is concerned, is that his Honour (and the RRT) found that the appellant's claims of harm at the hands of the debt collectors needed to have a relevant nexus with a Convention reason to satisfy the criteria for a visa. His Honour found no error in the Tribunal's finding that there was no such nexus. I can discern no error in his Honour's judgment in this regard. 16 In his Notice of Appeal the appellant also claimed that he sought to file a transcript of the RRT hearing in the Federal Magistrates Court but his request was not considered. He withdrew this claim today, saying that he made no such request of the Federal Magistrate. 17 For the reasons stated, the appellant has shown no error in the Federal Magistrate's conclusion that there was no error in the RRT's decision and I would dismiss the appeal with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

appellant claimed that he faced persecution from money lenders whether claimed persecution was for a convention reason migration

Both the applicant and his solicitor have given evidence that the applicant gave prompt instructions to appeal which were not complied with by the solicitor, solely because of his default due to what he claims was distraction at the time caused by external events which I need not go into. Whilst the position revealed is quite unsatisfactory and has led to an unacceptable delay, I am not prepared, in this case, to penalise the applicant because of the default of his solicitor. To say he has the right to sue his solicitor is of no comfort in a case of this kind. 2 It is necessary, however, to also show there is a proper basis for an appeal. In the course of argument, I have indicated that a number of the proposed grounds will not be allowed. Some meet Full Court authority head on. That is the case in respect of proposed grounds 3 and 4. Ground 5 was not put before the learned Federal Magistrate and should not be permitted on appeal. Ground 6 is contrary to the statute. 3 I am persuaded to permit grounds 1 and 2 because of the decision of the Full Court in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Whilst the solicitor for the Minister has submitted that there are differences between this case and the underlying factual situation of that case, it seems to me that the applicant should not be shut out from seeking to bring himself within the rather ample boundaries set by that case if it is to be regarded as good law, and for present purposes I must so regard it. It is not appropriate for me to say any more than that I think that the rather liberal threshold has been met.

application for extension of time to file and serve notice of appeal delay caused by solicitor's default leave granted migration law

The Tribunal had affirmed a decision of a delegate of the then Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant. A previously constituted Tribunal had affirmed a decision of a delegate of the now Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant under the Migration Act 1958 (Cth) ("the Act "). That decision was dated 13 May 2005 and handed down 2 June 2005. This decision was remitted to the Tribunal by the Federal Magistrates Court, and on 10 April 2006 the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. The matter before this Court concerns the second Tribunal decision. On 19 January 2005 the appellant lodged an application for a protection visa with the now Department of Immigration and Citizenship. According to his application for a protection visa, the appellant married in the city of Tianjin in 1985. He arrived in Australia legally from China using a passport obtained without difficulty in Tianjin in 2003 and an Australian visa issued in Beijing on 4 January 2005. He left his wife, daughter and mother in China. He claimed that during this period he was forced to give up his beliefs, as well as confess all of his mistakes and offences. He claimed that he was released in June 2002 (which does not account for eighteen months in prison), because the authorities believed that he had been brainwashed and given up Falun Gong, and that if it was discovered that he had not given up Falon Gong he would be punished and persecuted. f) he would only attend secret Falun Gong meetings and the Public Security Bureau (PSB) suspected this and he was warned. He said that in 2004 the government acquired the land on which his business was located but without compensation. The appellant claims that the PSB warned him that he would be arrested if he participated in Falun Gong and accordingly the appellant left China for Australia before any evidence was found upon which to arrest him. The appellant returned a Response to Hearing Invitation and submitted photographs of him practicing Falun Gong, a letter outlining the demolition of a building by government order and a release certificate outlining release from imprisonment for illegal gathering. 5 The Tribunal was not satisfied that the appellant was a Falun Gong practitioner in China, or that he was penalised in any way upon a suspicion that he was one. It identified inconsistencies in the appellant's evidence and considered that he was not being entirely frank or open in his evidence. It concluded that the appellant's story was completely inconsistent with country information about the Chinese government's treatment of Falun Gong practitioners at the relevant time. It gave due consideration to the document provided by the appellant concerning his release from the labour camp but, given the prevalence of document fraud in China, and the implausibilities in his story, determined that it could not rely on that document to show that the appellant had in fact been in a labour camp. 6 It also concluded that the ease with which the appellant obtained a passport in 2004 suggested he was not of interest to the Chinese authorities for being a Falun Gong practitioner. 7 It did however accept that his business building had been demolished, and that the appellant did not receive any compensation for this but it was not satisfied that this was because of any involvement with Falun Gong. The Tribunal had regard to his claims about his activities in relation to Falun Gong since coming to Australia. However, it concluded that he had involved himself in these activities in order to strengthen his refugee claims. The Tribunal accordingly disregarded these claims under s 91R(3) of the Act . The Tribunal found that the appellant gave his evidence in a manner which was not always clear and asserted that he gave the impression he was not being entirely frank or open about some of his past experiences. 9 The Tribunal found that the oral evidence of the appellant concerning what he knew of the attitude of the authorities to Falun Gong practitioners was internally inconsistent and, having regard to independent evidence, it seemed implausible that the appellant could have remained unaware of the government "crackdown" in Falun Gong practitioners in 2001, particularly as the appellant was a government employee and lived in the city where the "crackdown" began. Further, the Tribunal found the appellant's account of practicing Falun Gong to lack cogency. The information about the treatment of practitioners in China was quite inconsistent with the description which the appellant supplied. 11 The Tribunal considered the fact the appellant had been issued with a passport to be inconsistent with evidence that practitioners who have undergone re-education face difficulty obtaining a passport. Also, given that the appellant had remained at the same address during his time in China, the Tribunal considered that this signified that he did not consider himself to be at risk of police harassment or arrest at the time he left China for Australia. 12 The Tribunal accepted that the appellant had lost his job and established a small business in rented premises which were demolished by the owner and rebuilt and leased out to a new tenant, despite the fact that the appellant had a 3 year lease on the premises. The Tribunal further accepted that the appellant received no compensation for this and that this caused him financial difficulties. However, the Tribunal was not satisfied that these matters occurred because of his claimed involvement in Falun Gong. The Tribunal accepted that the appellant was injured while working in the coal industry but not while he was working in a labour camp. 13 The Tribunal was of the view that the appellant was present at Falun Gong related functions in Australia, in order to enhance his claims of being a refugee. Consequently, such claims to have practiced Falun Gong in Australia were disregarded by the Tribunal, pursuant to s 91R(3) of the Act . 14 The Tribunal considered the chance that the appellant would face Convention-related harm in China to be remote, and was not satisfied that the appellant was a person to whom Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol. The decision of the delegate was affirmed. First, the appellant claimed that the Tribunal failed to carry out its statutory duty in that it failed to provide information for comment pursuant to s 424A of the Act . Second, the appellant alleged that the Tribunal acted with bias and refused the application without evidence. Third, the appellant complained that the Tribunal relied on irrelevant materials and the independent information was out of date. His Honour correctly identified that the only information relied upon by the Tribunal was the oral evidence of the Tribunal and general country information relating to the China and the position of adherence to Falun Gong. These sources of information fell within the exception contained in ss 424A(3)(b) and 424A (3)(a). 17 The asserted basis for the allegation of bias was that the Tribunal did not believe the appellant. His Honour noted this to be a circular and unconvincing argument. There was no evidence of bias or bad faith in the decision of the Tribunal: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] - [44] . His Honour then considered whether the Tribunal refused the application without evidence, rejected this and had regard to the positive duty imposed on the Tribunal by s 65 of the Act to be positively satisfied that the relevant criteria for grant of a visa had been satisfied. 18 The third ground was dismissed by his Honour who found that the independent country information was irrelevant relating as it did to the Chinese Government crackdown on Falun Gong, the situation in Tianjin where the appellant claims to have taken up Falun Gong in 2001. The information concerned the years 2001-2006 and as his Honour found could not therefore be characterised as being out of date. The Tribunal failed to carry out its statutory duty. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to inform me why the information is relevant to my application, and I was not given an opportunity to comment upon the reason. 3. The Tribunal had bias against me and did not consider all the information and evidence provided for my application for a protection visa. The Tribunal misunderstood my claims and could not consider my application according to s 91R of the Migration Act 1958 . The second asserts bias, that the Tribunal failed to consider all the information which accompanied the protection visa application and that it misunderstood his claims and could not consider his application according to s 91R of the Act . The only information used by the Tribunal in an adverse way was derived from the applicant's oral evidence at hearing, and from general country information about Falun Gong practitioners and document fraud in China. The information from the oral evidence at hearing falls within the exception in s 424A(3)(b) , as it was information "that the applicant gave for the purpose of the application". The information from the general country information falls within the exception in s 424A(3)(a) , as it was "not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member": Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 26 at [71] - [73] ; [2004] FCAFC 264 ; (2004) 140 FCR 572, 586-587. It must be clearly proved by evidence. It is rare for a Court to find that an administrative decision maker acted in bad faith, especially where the only thing said to be in support of this is the decision record: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43]-[48]. 24 There is no evidence of bias, or apprehended bias, in any of the material before the Court. The mere fact that the Tribunal found that the applicant was no credible, and did not believe the applicant's claims, does not establish bias on the part of the Tribunal member. There is no evidence to support the allegation that the Tribunal misunderstood any of the applicant's claims. In order to raise a new ground the appellant must demonstrate that it is expedient and in the interests of justice to allow the ground to be raised: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319; see also Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7. Factors relevant to the Court's consideration include, inter alia, the appellant's prospects of success on appeal on the new ground: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [26] . 28 The respondent submits that these grounds have no prospect of success. The Tribunal decision record clearly states that the Tribunal was not satisfied that the appellant's conduct in Australia was engaged in other than for the purpose of strengthening his claims to be a refugee within the meaning of the Convention. In such circumstances s 91R(3) provides that such conduct must be disregarded. 29 The Tribunal clearly put the appellant on notice of the issues arising on the review: (Tribunal Reasons pp 5-10). The issues of inconsistencies within the appellant's evidence, and between his evidence and country information, the Tribunal's scepticism concerning the documents provided, and the issue of the appellant's ease of obtaining a passport were all raised with the appellant. Accordingly, the first respondent submits that the appellant was put on ample notice of the issues arising on the review, and afforded the opportunity to respond to those issues at the hearing. I am satisfied that the submissions of the first respondent in respect of this ground fully and correctly identify the reasoning and conclusions of the Court below, with which I respectfully agree. 31 I am persuaded that no error by the Federal Magistrate nor any jurisdictional error by the Tribunal has been demonstrated. I would refuse leave to the appellant raising ground 3 (other than in respect of bias which does not require leave) as I am satisfied that these have no or no reasonable prospect of success for the reasons submitted by the first respondent. 32 The appellant, in oral submissions, raised a further new ground namely that the first respondent did not provide him with its written outline of submissions before the morning of the Tribunal hearing. 33 However, when invited by me on a number of occasions to explain what prejudice if any he had suffered as a result he did not do so. 34 He said that the submissions were translated for him on the morning of the hearing and after the hearing and before the review in the Court below. I would refuse leave to raise this ground. It was completely unparticularised. It has no prospect of success. 35 The appeal should be dismissed with costs fixed at $2,800. 36 The Refugee Review Tribunal should be joined as the second respondent in these proceedings. 37 The title of the first respondent should be amended to "Minister for Immigration and Citizenship". I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice GILMOUR.

appeal from decision of federal magistrate application for protection visa whether jurisdictional error whether failing to comply with s 424a migration act 1958 (cth) whether bias no point of principle. application to raise grounds not argued below whether reasonable prospect of success no point of principle. migration appeals

That visa was cancelled when the appellant did not commence the course in which he was enrolled. Subsequently, he was granted a Sri Lankan temporary visa (subclass 435) valid until 31 July 1997. He applied for a further Sri Lankan temporary visa but this application was rejected on 4 August 1997. 2 On 30 July 1998, the appellant applied for a Change in Circumstances (Residence) (Class AG) visa, subclass 806, on the basis that he was a 'special need relative' of the nominator, his uncle. 'Special need relative' was then defined in Regulation 1.03 of the Migration Regulations 1994 (Cth) (the "Regulations"). The criteria for the grant of the visa included a requirement that appellant satisfy the definition of 'special need relative' both at the time of the application and at the time of the decision: cll 806.213 and 806.221 of Sch 2 to the Regulations. The appellant's uncle, an Australian citizen, was born on 28 December 1949. He arrived in Australia in 1974 and became an Australian citizen in 1980. At the time of the application, the nominator lived in Bundoora with his wife and three children (aged between 15 and 23). The nominator worked full time as a laboratory technician for a chemical company. The appellant lived in Brunswick. 5 In support of his application, the appellant submitted a report dated 30 July 1998 by a psychologist, Mr Edwin Kleynhans. Mr Kleynhans applied the Beck's Depression and Burns Anxiety Inventories to the appellant and the nominator. The nominator scored within the "None or Minimal" range for depression and within the "Minimal or No Anxiety" range for anxiety. However, Mr Kleynhans suggested that the nominator's depression and anxiety could increase substantially if the appellant were to return to Sri Lanka. 6 A delegate of the first respondent refused the application on 24 January 2002. The appellant sought review of that decision before the Migration Review Tribunal (the "MRT"). A further report by Mr Kleynhans, dated 19 August 2002, was provided to the MRT. That report stated that the nominator's levels of depression and anxiety had increased significantly. Mr Kleynhans found that this was caused by a decline in the nominator's health and by his concern about the appellant being returned to Sri Lanka. The appellant also informed the MRT that he had moved closer to his uncle and now lived in a house on the same street. 7 On 24 June 2003, the MRT affirmed the delegate's decision. The MRT noted that the appellant and his uncle had seen a psychologist for one hour on the day before the visa application was filed. The nominator had not previously sought professional treatment for depression, stress or anxiety and the psychologist did not recommend further specialised treatment. The MRT was not satisfied that, at the time of application, the nominator suffered from a prolonged illness. 8 The MRT also concluded that that the nominator did not require assistance because of "other serious circumstances" at the time of application. Citing Hussein v Minister for Immigration and Multicultural Affairs [1999] FCA 1621 (" Hussein "), the MRT stated that it was "not satisfied that the nominator's concerns for the safety of the visa applicant manifest a need for assistance due to circumstances serious enough to reach the threshold set by 'death, prolonged illness or disability'". The MRT noted that the nominator worked on a full time basis and that Mr Kleynhan's August 2002 report stated that the nominator's stress level had not been a major concern in 1998. 9 Next, the MRT considered whether the assistance provided by the appellant was "substantial" within the meaning of regulation 1.03. The applicant claimed that he assisted his uncle by providing him with company, assurances and moral support, as well as helping with household chores. The MRT concluded that this assistance was not "substantial" in the relevant sense. Finally, the MRT considered whether circumstances had changed sufficiently at the time of decision to alter any of these conclusions. The MRT determined that the appellant was not a special need relative of his uncle at the time of decision. 10 On 16 July 2003, the appellant filed an application in the Federal Court of Australia, pursuant to s 39B of the Judiciary Act 1908 (Cth), for review of the MRT's decision. The proceeding was transferred to the Federal Magistrates Court. Before a Federal Magistrate, the appellant argued that the MRT had misapplied the definitions of "prolonged illness", "other serious circumstances" and "substantial and continuing assistance". In a decision delivered on 12 November 2004, his Honour dismissed the application for review. This is an appeal from that judgment. The appellant's Notice of Appeal raised a number of grounds, not all of which were pursued at the hearing today. 12 In written submissions, the appellant contended that the MRT erred in law in regard to its finding that the nominator's depression did not amount to "other serious circumstances" within the meaning of regulation 1.03. Citing Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817 ; (2000) 105 FCR 39 (" Wu ") per Heerey, Moore and Goldberg JJ, the appellant argued that the MRT mistakenly applied Hussein when it held that the words "death, disability or prolonged illness" constrain the meaning of "other serious circumstances". The appellant argued today that the MRT therefore failed to consider whether depression other than that defined as clinical or medical depression could amount to "other serious circumstance". Clearly, this finding was open to the MRT on the evidence before it. The MRT made no finding that the assistance provided by the appellant was continuing. 14 The first respondent noted the significance of this concession that it was open to the MRT to find that the appellant did not provide "substantial" assistance to the nominator. The first respondent argued that, in light of this acknowledgment, the appeal must be dismissed. This is because, in the first respondent's submission, it is a necessary condition of being a special need relative that the relative be willing and able to provide substantial and continuing assistance. The first respondent claimed that, if the MRT validly found that the appellant did not satisfy this requirement, then, regardless of any other errors it may have made, it validly found that the appellant was not a special need relative. 15 The first respondent also disputed that the MRT misapplied the definition of "serious circumstances. " The first respondent argued that Wu did not support the view that "serious circumstances" should be understood independently of the nearby terms "death, disability or prolonged illness". Thus, in first respondent's submission, there was no error in the MRT's application of Hussein . 16 Furthermore, in written submissions, citing Re Minister for Immigration and Multicultural Affairs; ex parte Cohen [2001] HCA 10 ; (2001) 177 ALR 473 (" Cohen ") per McHugh J, the first respondent claimed that as "serious circumstances" is used in its ordinary, non-technical sense, its meaning is a question of fact. Accordingly, the first respondent submitted that, even if the MRT did apply erroneous precedent concerning the meaning of "serious circumstances", this was not jurisdictional error. The language of regulation 1.03 makes this clear. 18 Because of the appellant's concession that it was open to the MRT to find that the assistance he provided to the nominator was not substantial, the appellant has also effectively conceded that it was open to the MRT to find that he did not satisfy a necessary requirement of the visa. The appeal must be dismissed if only for this reason. 19 If it were necessary to do so, I would also reject the appellant's argument that the MRT misapplied the definition of "serious circumstances". Contrary to the appellant's submission, Wu is consistent with the view that the terms "death, disability or prolonged illness" are relevant to the meaning of "other serious circumstances". In fact, in Wu at [41], the Full Court held that a circumstance "is sufficiently serious [if], in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness". Thus, the Wu Court, like the MRT in this case, considered the meaning of "serious circumstances" in light of the nearby terms. It was clearly open to the MRT to decide that no "other serious circumstances" were present at the time of application. Even if Hussein no longer correctly states the law in all respects, the Tribunal's reliance on this decision did not lead it into relevant error. 20 As no error has been shown in the MRT's decision, I need not consider the significance of Cohen and whether or not any error of interpretation would have been a jurisdictional error. 21 I would order that the appeal be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

special need relative no substantial and continuing assistance no serious circumstances migration

I reserved the question of costs, and gave the parties the opportunity to exchange written submissions on costs. 2 Both the first and second respondents seek costs of the proceedings to date on an indemnity basis against the applicants, relying upon the principles discussed in Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 223-234 and alternatively party and party costs. The applicants contend that no order as to costs should be made at all in the circumstances. 3 In the proceeding the applicants unsuccessfully sought orders requiring the second respondent, the Administrator of the Nyangatjatjara Aboriginal Corporation (NAC) under the Aboriginal Councils and Associations Act 1976 (Cth) (the Act), to take certain steps in the administration relating to the preparation of a Register of Members, to the calling of certain general meetings, and to the preparation of certain reports with a view to having the NAC return to the control of its members. They also unsuccessfully sought orders requiring the first respondent to require the second respondent to establish a current Register of Members of the NAC and for declaratory orders as to the proper operation of the Act. 4 In my view the application for indemnity costs should be refused. 5 I have formed that view notwithstanding that the applicants' initial points of claim of 12 January 2007 were somewhat loosely expressed, and that the nature of the relief sought was substantially re-formulated at the commencement of the hearing. I do not consider that those matters significantly increased the preparatory work carried out by the respondents, or caused them to incur costs which they would not otherwise have incurred. The re-formulated relief claimed did not cause the respondents to acknowledge any matters which they had previously disputed or, on the evidence, cause them to re-trace or extend their preparation for the case. 6 The principal submission of the respondents was that the claim was bound to fail, partly because certain of the orders sought were inconsistent with authority and partly because the declaratory orders sought related to future events and simply re-stated statutory obligations. The submissions of the first respondent accept, or appear to accept, that the applicants had a genuine concern about the progress of the administration of the NAC by the second respondent. The second respondent was appointed on 26 April 2006 and, at least from the applicants' perspective, the things which they had expected the second respondent to attend to had not apparently been progressed. During the hearing the second respondent explained the extent of his activities following his appointment and the reasons why a Register of Members had not, by then, been completed. The evidence also showed a sincere concern on the part of the applicants about the consequence of the on-going administration on the operation of the Nyangatjatjara Aboriginal College (the College), an activity of the NAC. Those matters do not of themselves expose an unarguable case, even in the light of correspondence before the proceedings which pointed out the first respondent's position that, in her view, the proceedings were misconceived. 7 Although I concluded, for the reasons I expressed, that the applicants' claims should not succeed, that was a view reached after hearing all of the evidence. By way of an extreme example, had there been total inactivity by the second respondent appointed under the Act, and had the first respondent been indifferent to that circumstance, the Court may have concluded that some error of law underlay that inactivity. The point is that the conclusions generally depended upon findings made on the evidence. There were some orders sought which I found simply not to be available as a matter of law, but on those matters the hearing including submissions was relatively brief in the context of the entire hearing. I do not therefore consider, viewed overall, that the applicants' claims were so unreasonable or so unlikely to succeed, or that they conducted their case in such a manner, that an award of indemnity costs should be made. Compare Fountain Select Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202 ; (1998) 81 ALR 397 at 401. 8 The applicants identified a number of matters relevant to whether the normal order as to costs should apply. It is necessary to identify special circumstances which would lead to departure from the general rule that costs should follow the event: Ritter v Godfrey [1920] 2 KB 47 ( Ritter ), at least at a practical level. 9 The first was that the administration of the NAC was initiated by the first respondent, and then the applicants were in effect obliged to institute proceedings because the respondents denied them information about the progress of the administration. The applicants were the Anangu, ie representatives of the three Aboriginal Communities directly affected by the appointment of the second respondent. As the evidence in the proceedings showed, there was a real concern on the part of the first respondent about the maintenance of a Register of Members by the Governing Committee of the NAC before the appointment of an Administrator and a real concern about how the then members of the Governing Committee came to hold their offices (as well as about other matters concerning the administration of the NAC). However, at a practical level, I do not think there is any doubt that at least informally the applicants were all, or almost all, members of the Governing Committee (at least a de facto governing committee) of the NAC at the time of the appointment. They were, and remain, genuinely and properly interested in the well being of the NAC on an ongoing basis and the effect of the administration upon its affairs. The NAC and its subsidiary or associated activities was a very substantial enterprise. That proper interest (in the practical sense) arose from the applicants being representatives of the Anangu as well as their previous status. It is also apparent from the evidence that the applicants, through their solicitors, invited the respondents to keep them informed as to the progress of the administration but that their requests for information were largely unsatisfied. That circumstance must be seen in context. Their request for information was, on occasions, more than that: assertions that the second respondent, and later the first respondent, should do things which they allegedly had not done; and that the second respondent was doing things detrimental to the interests of NAC. That may explain, in large measure, why the applicants' requests for information were not satisfied. In addition, the respondents took the view that their asserted position as officers of the NAC was in doubt for the reasons already given. Nevertheless, no other persons more obviously than the applicants were identified as persons from the Anangu who might have been kept informed of the progress of the administration, and I think it was appropriate that, by some means, the Anangu should have been kept generally informed as to its progress. It is therefore understandable that the applicants were "invited" (to use the word used by them in submissions) to commence proceedings by the respondent. I shall return to this feature later in these reasons. 10 The applicants also contended that any order for costs against them, given that they were seeking to involve themselves in the administration of the NAC and in the light of its very significant interest to their communities, would "send a message to Aboriginal persons not to involve themselves in such matters". I place little weight on that factor. An applicant has a perceived interest in the matters raised in the particular proceeding in every circumstance, and not uncommonly that interest is shared with others. Sometimes, for that reason, the applicant is supported by others interested, including support as to the costs of the proceeding. But it is no principle of law that the fact that the proceedings are brought by one person, inter alia, for the indirect benefit of others or because there are others interested in the outcome means that that applicant should not be obliged to pay the respondents' costs if the proceedings are unsuccessful. Nor is there any principle, so far as I am aware, that the exercise of the costs discretion should be exercised differently because the applicants are indigenous persons. I do not think the applicants meant to submit that. 11 There are well developed guidelines for the exercise of the costs discretion in what are called "test cases" (where one case will decide an issue which is likely to arise in many other cases) or in what is called public interest litigation. This was not such a case. 12 Reference was made to the decisions of Ruddock v Vadarlis (2001) 115 FCR 229 and Geeveekay Pty Ltd v Director of Consumer Affairs Victoria (No 2) [2008] FSC 152. The Court declined to order costs against the unsuccessful appellant because the unusual circumstances of the case involved matters of high public importance and raised the question of the liberty of individuals who could not take action on their own behalf in the determination of their rights. In declining to order costs, the Court considered inter alia, the fact that the proceedings raised novel and important questions of law in relation to the alleged deprivation of liberty of individuals, executive power of the Commonwealth, and the operation of the Migration Act 1956 (Cth). Judicial opinion was divided. There was also no direct or financial gain to those respondents in pursuing the matter. 13 In Geeveekay , even though the appeal involved an important question of law, the resolution of which was in the public interest, namely whether the terms of certain contracts for the sale of land were credit contracts, regulated by the Consumer Credit Code (Vic) , the proceeding was of a private nature. In effect, the applicant in Geeveekay brought the appeal in the pursuit of its own commercial interests, and there was no sufficient reason to distinguish it from other private litigation between a member of the public and a government agency. The present case, in my view, falls within the latter category. 14 Finally, the applicants contended that, because the costs of the first respondent could be recovered from the property of the NAC: see s 74 of the Act, including the costs of the second respondent incurred as Administrator upon the appointment of the second respondent, that is a more appropriate avenue for the respondents to be protected as to the costs of the proceedings than an order against the applicants. They rely on the right under s 74, but do not want it exercised. They submit that the Registrar should not exercise those powers because (they contend) the exercise of them would render the NAC insolvent and lead it to being wound up. I do not know enough about the financial circumstances of the NAC, or the progress of the administration, to know whether that is the case. There is some evidence to suggest that the NAC through various business activities conducted through entities in which it had an involvement and that it had a very substantial range of assets and perhaps liabilities. I do not think that matter provides a basis for not applying the usual rule as to costs. 15 One matter upon which the applicants sought to make submissions was based upon proposed affidavit evidence relating to the question of costs. That evidence was to show that the second respondent, despite evidence given at the hearing, had not progressed the administration with the speed at which he had said he would, and that the outcome of the administration has been regarded by the Anangu as unsatisfactory, even though it is ongoing. The respondents opposed the application to rely upon that affidavit evidence on two grounds. Firstly, that it was irrelevant to the exercise of the costs discretion in any event. And secondly, that it should not be received in its current form partly for reasons of form and partly because they would then wish to contradict it and to cross-examine the deponent about it. I do not propose to receive that material. I do not think the events after the conclusion of the hearing are appropriate matters to address in relation to the exercise of the costs discretion, particularly as they are apparently contentious and would prolong the hearing. For that reason, I propose also not to receive the additional responsive affidavit upon which the second respondent putatively sought to rely. 16 I return to consider the respective communications between the parties leading up to the proceeding. 17 On the material available to me, the solicitor acting for the applicants wrote a number of letters between 16 June 2006 and 15 November 2006 to the solicitor acting for the second respondent in which they requested information about the progress of the administration. Those requests were variously for information about the presence of the administrator on a day to day basis at Yulara to assist in the management of the NAC, the time frame for the administration, the actions of the administrator in undertaking to rectify any concerns of the first respondent in relation to the membership, the management, the proper functioning and staffing of the College, and repeated requests for the second respondent to convene a special general meeting of the NAC. In the absence of a response, the applicants on 20 October 2006 repeated those matters. The response of 27 October 2006 was not very informative. The second respondent said he was in the process of establishing a consultative process for obtaining direct input from the communities regarding the future of the College. He also said that he did not intend to have any meeting with the applicants at that time. 19 The second respondent replied to the applicant's correspondence by five letters, including that of 27 October 2006 referred to above. I consider that it was not until 15 November 2006 that any substantive information about the progress of the administration was disclosed. On 29 June 2006, the second respondent said that he did not see any point in responding to the earlier request for information, except to say that he had not refused to see the applicants, but rather that he saw no useful purpose in such a meeting. By letter of 4 August 2006, the second respondent said that the applicants did not have any specific capacity or standing to obtain information regarding the administration, and that he would consider the identity of persons to whom information should be provided and the manner of dissemination in due course. By final response on 15 November 2006, whilst maintaining that he was not obliged to respond to the requests of the applicants, the second respondent outlined the main priorities of the administration and how they were to be addressed both in the short term and the long term. 20 In essence, an informative response about how the administration was progressing was only given after some five months from the first request for such information. The proceedings were commenced about three weeks later. 21 Between July and November 2006 the applicants' through their solicitor also wrote to the solicitor for the first respondent on at least seven occasions. The correspondence included requests for information in relation to the progress of the administration and the possibility of arranging a meeting with the respondents. 22 On 29 August 2006, they asked if the first respondent had received a report from the administrator and whether they could be apprised of its content. They received no response. On 18 September 2006 they expressed their concern that the administration, and the lack of information, was having a detrimental effect on the Anangu and may have been damaging to the business activities associated with the NAC. They sought information about the timeframe of the administration, and any action taken to that time to rectify the concerns of the first respondent which led to the appointment of the second respondent. By response of 19 September 2006, the applicants were told that the first respondent had received reports from the second respondent, but that the contents of those reports were confidential. There was no further information provided, save for an assurance that the second respondent was performing his functions. 23 On 22 September 2006, the applicants' solicitor made "a plea for [his] clients for some cooperation and mutual confidence". It noted that the applicants had a legitimate interest in the continuation of the NAC as they were former members of its Governing Council. The request for information on that occasion related to the issue of membership and the deterioration in the service provided by the College. There was no response to that letter. The applicants on 7, 13 and 22 November 2007 said that, if some information relating to the administration was not received, they would institute proceedings. On the material available, there does not appear to have been any response to those communications. There was no attempt by the first respondent to provide any information or to alleviate any concerns raised by the applicants by the provision of information. 24 As discussed in [9] above, whilst there is no specific legal obligation on the part of the respondents to provide information to the applicants, there were good practical reasons why they should have done so. The applicants are members of the NAC, and all, except for Margaret Smith, were former members of the Governing Committee before the appointment of the second respondent. The services which may be provided are extensively described in s 11(3). An Aboriginal Council may be established by the Registrar only after a meeting of the Aboriginals living in the area and after their views are ascertained (ss 12 and 13). It may only be established if a substantial majority of the Aboriginals in the area support it (s 16(1)(a) and s 19). 26 Part IV of the Act addresses the incorporation of Aboriginal associations. They must be formed wholly for business purposes, or land owning or leaseholding purposes, or have a minimum of 25 members (s 45(3)). Membership is restricted to Aboriginal persons or their spouses (s 49). Where they are for, or partly for, the purpose of securing pecuniary profit for members, the rules must provide appropriately for profit sharing among members. Importantly, the "constituency" of an incorporated Aboriginal person is the relevant Aboriginal community or the Aboriginal members of the association. 27 In each instance, the Act indicates an intention that, within a certain community, the Aboriginals may operate through a Council or an incorporated Association within their respective spheres of activity. They are given independence to do so, providing the statutory accountability requirements are met. If they are not met, after investigation, the Registrar is given power to appoint an Administrator under s 71. The Administrator becomes responsible for the conduct of the affairs of the corporation and has the functions and duties of the public officer (s 75). In the case of an incorporated Aboriginal association (such as NAC), the public officer must establish and maintain a register of members (s 58). The affairs of such an association include the election of its Governing Council, the calling of its annual general meeting, and the maintenance of its accounts, records and financial statements, and an annual report (which must be provided to the Registrar (see ss 57-59). 28 In my view, in the light of that statutory structure, it was not unreasonable for members of NAC, particularly those who had been members of its Governing Council (at least on a de facto basis) to be both interested in, and concerned about, the progress of the administration. Apart from the Registrar, it is hard to envisage others who might have had a greater interest, or a greater concern to see that the second respondent promptly fulfilled his responsibilities. There was no other group more obviously representative of the "constituency" of the NAC. I therefore consider that the level of response of the respondents to the applicants' requests for information is a factor which may have informed the applicants' decision to have instituted these proceedings and, to a point, to have maintained them. Had the responses been more informative, even if the respondents --- as they were entitled to do --- declined to consult with the applicants, I suspect the proceedings may not have been instituted. I do not go so far as to find that. There was no direct evidence upon which I could do so. The nature of the issues and of the relief sought, if proceedings were instituted, may well have been different. But I take into account the nature of the responses to the applicants' various requests for information in determining where the costs of the proceedings should fall. 29 Generally, a successful respondent, in the absence of special circumstances, has a reasonable expectation of obtaining an order for the payment of costs by the applicant. However, the Court has a discretion to make no order for costs against a successful respondent if the particular circumstances warrant it: see Donald Campbell & Co v Pollack [1927] AC 732 at 810-812. In Schaftenaar v Samuels (1975) 11 SASR 266 ( Schaftenaar ), Wells J at 273-275 discerned guiding principles for the exercise of the discretion. In essence, the Court is entitled to take into account any facts connected with or leading up to the hearing which have been satisfactorily proved or which have been observed during the progress of the case. If there has been conduct on the part of the respondent such as to lead the applicant reasonably to think that he or she had a good cause of action against them; or if the respondent has engaged in misconduct in the course of and in connection with the litigation, the discretion may be exercised to make no order for costs against a successful party. I think the present circumstances, for the reasons I have given, place this matter in the area where that discretion might be exercised, although they do not clearly fall into either of the two categories specifically mentioned in the preceding sentence. Obviously, they can only be illustrative and not definitive. 30 The courts have been careful not to use the discretion as a punishment or a penalty for disapproval of conduct leading up to and during the litigation. However, the courts most commonly speak about requiring "good cause" in order to depart from the usual costs order. Whether such good cause exists is always a matter of judgment: see Robertson & Moffat v Belson [1905] VLR 555 at 562 per Madden CJ. The judge's discretion is to be exercised in accordance with the justice of the case, the relevant test being "whether it would be more fair as between the parties that some exception should be made to the general rule": see Cates v Glass [1920] NZLR 37 at 68 per Edwards J. 31 No restrictive interpretation of "good cause" has been imposed. Some illustrations of circumstances in which the Court has considered whether to exercise the costs discretion other than in favour of the successful party are given by Ritter ; Schaftenaar and Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201. 32 In Latoudis v Casey (1990) 170 CLR 534 , the Court also considered the principles which guide a court in exercising the discretion whether to award costs. In that case the defendant was charged with theft of a motorcar, receiving stolen goods and unlawful possession of the same goods but was acquitted. The Magistrate had refused the defendant's application for costs on the ground that the informant had acted reasonably in instituting the proceedings and that the defendant had caused suspicion to fall on him by failing to seek proof of ownership of the goods when he acquired them. Mason CJ, Toohey and McHugh JJ (Brennan and Dawson JJ dissenting) held that the Magistrate's exercise of the costs discretion had miscarried and the defendant was entitled to his costs. Thus non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs. ... A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs. 33 In Jennings v Zilahi-Kis [1972] 2 SASR 493 , fraud proceedings were not successful. However, Bray CJ held that, even where fraud is not established, a successful defendant may be deprived of his costs by reason of circumstances leading up to and connected with the litigation. It has so enmeshed itself in conflicting obligations and ambiguous behaviour that it is not surprising that the plaintiff advisers decided to join it in this action. It could not have acted as it did, it might not have unreasonably have thought, unless it had been implicated in the original misrepresentations. 34 Hence, the costs discretion has been exercised against successful defendants where the defendant's conduct has occasioned unnecessary litigation and expense or has inappropriately prolonged proceedings. For example in Capolingua v Phylum Pty Ltd (1991) 5 WAR 137 , the way the defendants had pleaded their case, their conduct at a mediation conference and their counsel's failure to comply with orders pre-trial, caused the issues to be obscured, and unnecessary evidence to be led, resulting in an unnecessarily prolonged trial. Ipp J at 142 held that justice required there should be no order as to costs. See also Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 at 15; and Monier Ltd v Metalwork Tiling Company of Australia Ltd (No 2) (1987) 43 SASR 588 per Jacobs J at 592. 35 Having regard to the terms of the communications between the parties leading up to the proceeding, and the special circumstances of the applicants in relation to the administration, I consider that there should be no costs order of the proceedings to the present date. I have explained above why I think those factors in the present circumstances, lead to me exercising the costs discretion in that way. 36 The proceedings have been adjourned to a date to be fixed, with liberty to any party to apply by 31 July 2008 for further directions or for further hearing of the application. As the issue of costs has taken longer to resolve than I had anticipated, I will extend the period by which that liberty to apply may be exercised to 29 August 2008. If the liberty to apply is not exercised by then, the application will stand dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

consideration of circumstances in which there may be no order for costs against an unsuccessful applicant consideration of communications between the parties prior to proceeding consideration of status of applicant in relation to information sought order that there be no costs of the application costs

2 The substantive proceeding was initiated by the applicant, Ms Bahonko, pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act'). That section provides that if a complaint has been terminated by the President of the Human Rights and Equal Opportunity Commission ('the Commission') under, relevantly, s 46H, of which notice has been given under s 46PH(2), any person affected by the complaint may make application to this Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint. 3 Section 46PO(2) provides that any such application must be made within 28 days after the date of issue of the notice of termination, or within such further time as the court concerned allows. 4 The application and claim were filed on 26 July 2006 and relate to a complaint made to the Commission dated 19 January 2006 against the first respondent ('the NBV'), the second respondent ('the Minister'), and the "Victorian Government". Although the application and claim were made against the Minister by name, Bronwyn Pike, she is the former Minister for Health, and is the current Minister for Education, and it is convenient for the purposes of this judgment to refer to Bronwyn Pike as "the Minister". I will amend the description of the second respondent to read "Former Minister for Health/Current Minister for Education" as requested by the applicant. 5 On 1 June 2006, a delegate of the Commission terminated the complaint of race and disability discrimination pursuant to s 46PH(1)(c) of the HREOC Act on the basis that it was lacking in substance, and gave Ms Bahonko notice of the termination on the same day. Accordingly, Ms Bahonko was some 27 days late in commencing this proceeding and, putting aside arguments raised by Ms Bahonko that in the circumstances of the case leave is no longer in issue, to which I will return later, application has been made by Ms Bahonko for leave to file out of time her application and claim. NBV requires applicant to comply with terms, conditions & requirements which are not reasonable having regard to the circumstances of the case & the applicant cannot comply with those and the requirements to comply has the purpose and effect of nullifying and impairing the recognition on an equal footing as the other person would have in all the fields of a public life. Such actions are based on the applicant's race, descent, ethnic origin, political opinions and actions, religious beliefs and imputed disabilities. • The respondents failed to comply with the HREOC Act and any other relevant legislation "in their criminal actions against the applicant". • The respondents "imputed multiple disabilities upon the applicant and vilified applicant, then discriminated against applicant on the basis of their imputations, impositions and vilifications". • The respondents denied the applicant "all human rights, liberty and freedom". • The respondents subjected the applicant to "a racially motivated harassment and psychological tortures for a prolonged period of time (the last two years)". • The respondents' actions were wilful and deliberate according to a "long term criminal and a far-reaching plan". This included an attempt to break up the applicant as a person and commit an "assault on applicant's identity". The respondents' actions prevented the applicant from properly supporting herself and leading a dignified life. The respondents' actions amount to genocide. She also seeks aggravated damages for economic losses consisting of income and other benefits for 21 years being the remaining years of her nursing career. She also seeks aggravated damages for non-economic losses, including damages to health, reputation, identity and nullification of her future. 12 In this proceeding, a number of notices of motion have been filed by Ms Bahonko at various times. Some of those motions have been completely dealt with, some of them have been partly dealt with, and others have not been determined being left to await the determination of the applications the subject of these reasons. As mentioned above, the motion of the NBV, notice of which was dated 15 September 2006, seeking orders that Ms Bahonko be refused leave to extend time for the initiation of this proceeding and, in the alternative, for summary disposal of the proceeding if leave to initiate is granted. 2. As mentioned above, the Minister's motion, notice of which was also dated 15 September 2006, seeking orders that there be judgment for the Minister against Ms Bahonko under s 31A(2) of the Federal Court Act. 3. 5.2 "The relevant proceedings (at present VID 828/2006) at the Federal Court will be joined into one proceeding against the State of Victoria". 5.3 "The original jurisdictions of the Court will be added to the current ones". 5.4 "Additional jurisdictions relevant to the matters will be added". 5.5 "Urgent monetary relief is granted to the applicant". 6.2 "Jurisdiction of the Court in the matter VID 855/06 is extended to include relevant and criminal jurisdictions". 14 The principal question to be determined is whether leave ought to be granted to Ms Bahonko to file this proceeding out of time. In early 2003, Ms Bahonko commenced work at Moorfields Aged Care facility at Box Hill ('Moorfields'). Whilst working at Moorfields, Ms Bahonko approached the Director of Nursing, Ms Riley, with concerns about the workplace. After this consultation, Ms Bahonko claimed she started to be "systematically harassed, stalked, subjected to various set ups and abuses". 16 In August 2003, Ms Bahonko commenced a second job part time at another Uniting Church Aged Care facility at Bodalla ('Bodalla'). Whilst in that position, Ms Bahonko was told by the Director of Nursing "not to show outside religious terms". This was apparently in response to her wearing a Virgin Mary on a chain visible outside her uniform. In around November 2003, Ms Bahonko stated that she was "stalked" by Ms Turnbull (CEO of Moorfields) and was "subjected to harassment and unlawful practices and the working condition as at Moorfields". On 9 March 2004, Ms Bahonko claimed she was emotionally and verbally assaulted and openly told that she had no rights. She immediately ceased working at Bodalla. 17 On 6 May 2004, an incident occurred at Moorfields which resulted in Ms Bahonko being escorted off the premises by the police. 18 It appears that some time before the incident, a complaint was made by a patient about Ms Bahonko. While that complaint remained unresolved, it seems that another two complaints were made against Ms Bahonko, complaining of inappropriate communication and aggression. All three complaints remained unresolved at the time of the incident on 6 May 2004. By virtue of the complaints being unresolved, Ms Riley and Ms Turnbull decided to ask Ms Bahonko to stand down from her duties at Moorfields, pending an investigation into the outstanding complaints. 19 There are two different versions of events of what occurred on 6 May 2004. One version is that Ms Riley, along with Ms Wood, the Quality Manager at Moorfields, approached Ms Bahonko to ask her to leave the workplace. According to an incident report completed on the day, Ms Bahonko at first agreed to leave, but when Ms Riley asked her to give the keys to the drug trolley, she refused. Some discussion ensued as to what stage Ms Bahonko was in administering medication to the resident patients. Ms Riley began to explain to Ms Bahonko that her actions with the medication were against "safe practice". Ms Bahonko apparently put her keys back in her pocket, sat down, and made some private phone calls. At this stage, Ms Wood contacted Ms Turnbull about how to manage the situation, who instructed her to contact the police to have Ms Bahonko removed. It seems that Ms Riley again asked Ms Bahonko to hand over the keys and leave the premises, which was refused, and the police were contacted. After the police arrived, Ms Bahonko asked them to check her pre-prepared medication. The police asked her to hand over the keys and leave the premises, at which point Ms Bahonko apparently began disposing of the pre-prepared medication. The police physically approached her and escorted her from the premises. Ms Riley completed a report of the incident on the day, and also completed a medication incident report, which provided that Ms Bahonko had not adhered to the procedural and safe practice guidelines in preparing the medication on 6 May 2004. 20 On the other hand, Ms Bahonko claimed the incident was a "criminal set up" organised by Ms Riley and Ms Turnbull. Ms Bahonko claimed that her employer tampered with medication she was to administer. Ms Bahonko claimed the trolley with medications was taken from her and she was denied "a lawful handover of medications" when she stood down from her position. She also said that she was lawfully obliged to discard the medication to prevent further crimes and frauds but was told by the police that she was "discarding evidence". In response to the "set up", Ms Bahonko made an official complaint to the safety authorities that she was "viciously assaulted" at Moorfields by police officers allegedly under the direction of Ms Riley. 21 Whatever were the actual circumstances of the incident, as a result, on 10 May 2004, a letter was sent to Ms Bahonko from Ms Turnbull terminating her employment at Moorfields for misconduct. 22 On 19 May 2004, Ms Riley made a complaint to the NBV regarding the incident. 24 On 25 May 2004, Ms Bahonko wrote to the NBV objecting to the suspension and denying the allegations. She sent further letters vehemently denying the allegations and provided her version of the events. 25 On 4 June 2004, Ms Bahonko filed an application with the Victorian Civil and Administrative Tribunal ('VCAT') for review of the NBV's decision of 24 May 2004 to suspend her registration. On 19 August 2004, on application by the NBV, VCAT decided to strike out Ms Bahonko's application: see Bahonko v Nurses Board of Victoria [2004] VCAT 1663. 26 On 17 June 2004, the NBV held a board meeting to review its decision to suspend Ms Bahonko's registration and it decided to maintain the suspension. A letter was written to Ms Bahonko explaining the NBV's decision to continue the investigations and the suspension of her registration. 27 Ms Bahonko claimed she was told by the NBV's investigator, Ms Miln, that the NBV would lift her suspension, but due to her not signing some papers, this did not occur. However, according to a letter to Ms Bahonko from Russell Kennedy on behalf of the NBV, it was stated that Ms Miln required Ms Bahonko to "cooperate in and assist with the investigation process" in order to have the suspension lifted. It was also stated that a decision to lift the suspension could only be made by the NBV. 28 On 6 July 2004, Ms Bahonko attended a hearing conducted by the NBV. Ms Bahonko stated that she was "treated in a degrading manner and abusively" and she did not wish to attend any further hearings. 29 On 26 July 2004 the NBV wrote to Ms Bahonko stating that it had terminated the preliminary investigation into Ms Bahonko's health and fitness to practise as a nurse, but the investigation into her professional conduct was ongoing and the suspension remained in place. 30 In 2004, Ms Bahonko wrote to the Minister and on 23 August 2004 the Minister responded that, under the legislative framework for hearing of complaints and the appeal and review mechanisms in place, the Minister was unable to become involved in individual decisions. 31 On 27 August 2004, the NBV wrote to Ms Bahonko inviting her to attend a formal hearing into her professional conduct to be held on 27 September 2004. The NBV proposed to consider at the formal hearing alleged unprofessional conduct in which Ms Bahonko was said to have engaged. 33 The NBV also informed Ms Bahonko that it had decided to appoint a panel of NBV members ('the Panel') to conduct the formal hearing. In deciding to hold a formal hearing, the NBV considered a number of documents which it attached to the letter, which were said to support the allegations made against Ms Bahonko. 34 On 25 August 2004, proceedings were filed by Ms Bahonko in the Supreme Court of Victoria seeking, amongst other things, an injunction to restrain the NBV's hearing of the complaints against Ms Bahonko scheduled for 27 September 2004. On 6 September 2004, the Supreme Court proceeding was heard and dismissed on the basis that it had no prospect of success. Ms Bahonko appealed this decision, which was dismissed, and Ms Bahonko's application for special leave to appeal in the High Court was also refused: see Bahonko v Nurses Board of Victoria [2005] HCATrans 864 (20 October 2005). 35 The Panel's formal hearing went ahead on 27 September 2004 and was not attended by Ms Bahonko though she had been invited to attend. On 14 October 2004, in its written determination, the Panel found that Ms Bahonko "had engaged in unprofessional conduct of a serious nature". It appears from the Panel's reasons for determination that a number of witnesses appeared at the hearing and the NBV was represented by counsel and Russell Kennedy solicitors. The Panel found that Ms Bahonko showed "a consistent refusal to accept direction that appears to the Panel to be deliberate, repeated and inexcusable". The Panel went on to find that her attitude towards the investigation and hearing was corroborative of the evidence "given in relation to Ms Bahonko's inability to take direction from her professional superiors". That Ms Bahonko successfully complete a course in medication administration, approved by the Board, of at least two days' duration. The complaint against the NBV primarily arose out of its decision to suspend her registration as a nurse on 24 May 2004, and its decision on 14 October 2004 to impose conditions on Ms Bahonko's registration after lifting the suspension. The complaint against the Minister arose because of the Minister's previous association with the Uniting Church, which is affiliated with the Aged Care facilities at which Ms Bahonko worked as a nurse at various times. The complaint against the "Victorian Government" was only in general terms. 40 In relation to the remaining complaint of discrimination on the grounds of religion and political opinions, the Commission decided not to continue to inquire into the alleged discriminatory acts or practice, pursuant to s 32(3)(c)(ii) of the HREOC Act, because the Commission was of the opinion that the allegations were lacking in substance. The HREOC Act defines "unlawful discrimination" in s 3 as meaning any acts, omissions, or practices that are unlawful under relevant provisions of the DDA, the RDA, the Sex Discrimination Act 1994 (Cth) and the Age Discrimination Act 2004 (Cth). 42 Justice Weinberg has usefully set out some other key aspects of the HREOC Act in the recent decision of Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [14] to [20]. I should note that Ms Bahonko submitted that the decision of Weinberg J should not be followed. However, leave to appeal from that decision was refused by Tracey J in Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1492 and in my respectful view, the statement of the relevant principles as set out by Weinberg J is correct. 43 Part II of the HREOC Act deals with the functions of the Commission, which include functions relating to human rights and equal opportunity in employment. It is under this Part that the Commission dealt with Ms Bahonko's claims of discrimination on the grounds of religion and political opinions. 44 Part IIB of the HREOC Act specifically deals with redress for unlawful discrimination. Division 1 of Pt IIB provides for conciliation by the President of the Commission and s 46PH allows the President to terminate a complaint on a number of grounds, including where the President is satisfied that the complaint is lacking in substance. 45 Division 2 of Pt IIB provides for possible further action in this Court or the Federal Magistrates Court where a complaint has been terminated by the President. Section 46PO allows a person affected by a complaint, where that complaint has been terminated, to make application to this Court for review. The principles to be considered when deciding whether to extend time for the filing of an application were described by Weinberg J in the decision of Bahonko v RMIT [2006] FCA 1325 at [21] to [24]. His Honour referred to the principles expounded by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which related to an application for an extension of time under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act'), and held that the principles therein stated were applicable to s 46PO. I respectfully agree with Weinberg J that those principles are relevantly applicable to an application under the HREOC Act. She referred a number of factors, including the amount of time that had elapsed since filing the proceeding, the number of interlocutory steps that have occurred, that the Court is not bound by technicalities in human rights proceedings by virtue of s 46PR of the HREOC Act, and that she will suffer prejudice if her application is refused. The extension of time has been resolved [by] the manner, the defendant proceed in this proceeding, by the manner the proceeding been handled and by the development and the process itself and it is quite fanciful and an abuse of the process, inappropriate legally at the moment, after a year the proceeding were in process to bring back something which has been basically dealt with, in real term by the process itself and has been resolved. The way in which the proceeding has run its course has been a result of the number of interlocutory applications brought by all the parties which required consideration by the Court. No interlocutory application involved or proceeded on the basis that the issue of leave to file out of time was resolved in favour of Ms Bahonko. There can be no suggestion of waiver or abandonment by virtue of the conduct of the respondents to lead to the view that the extension of time issue need not be determined by me or that it did not remain a live issue for decision. Further, there is no basis to suggest that s 46PR is applicable to issues going to jurisdiction so as to permit me to consider the application for leave otherwise than in accordance with the principles set out above: see Bahonko v RMIT [2006] FCA 1325 at [20] and [70]. Further, there can be no prejudice to Ms Bahonko, as the applications for summary dismissal, which were also before me, required consideration of the merits of the case, and therefore she was anticipating having to deal with the question of the merits of her complaints, and was given ample opportunity to do so. Ms Bahonko explained that she had been involved in a motor vehicle accident on 11 April 2006 and was still ill from the time the Commission gave her notice of the termination of the complaint on 1 June 2006. She submitted a number of medical certificates which stated she was unfit to work because of the accident from 11 April 2006 to 17 July 2006. 52 On the basis of those certificates, I accept that Ms Bahonko was ill at the time she received notification of the complaint until 17 June 2006. I note that the delay in filing her proceeding is relatively short, and I consider her excuse is acceptable in the circumstances. There is no specific evidence of prejudice because of the delay, and I will continue on the basis that there is no relevant prejudice to the respondents other than that the respondents were entitled to have the matter finalised within 28 days after the notice of termination was issued. I note, however, that absence of prejudice is not sufficient to allow an extension of time. It is useful to first set out the parties' submissions in relation to the merits of the case. The NBV claimed that the complaint only concerned its decision of 24 May 2004 and its decision of 14 October 2004. 56 The NBV opposed the grant of an extension of time on the basis that her claims are hopeless. The NBV submitted that its investigations of the professional complaints made against Ms Bahonko were entirely proper. Under s 22(1) of the Nurses Act 1993 (Vic) ('the Nurses Act '), the NBV was obliged to investigate any complaints about the professional conduct of a registered nurse which is about professional conduct. In order for the NBV to decide whether it was necessary to conduct a formal or informal hearing into the complaint, it must conduct a preliminary investigation: see s 22(2) of the Nurses Act . 57 The NBV submitted that there is no evidence that any of Ms Riley, Ms Turnbull or the police officers involved in the incident on 6 May 2004 were employed by, servants of, agents of or "protected by" the NBV. Whilst the NBV does not accept that any of the allegations against the conduct of those people was discriminatory in any way, it submitted that, in any event, the conduct occurred prior to, and without, the involvement of the NBV. 58 The NBV further submitted that its decision to suspend Ms Bahonko's registration pending the outcome of the investigations was a proper exercise of its power. Section 25 of the Nurses Act gives the NBV power, after making a determination to conduct a preliminary investigation about the professional conduct of a registered nurse, to suspend the registration of the nurse until any hearing into the matter is completed, provided the NBV is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered. The NBV submitted that there is no evidence to suggest that it exercised its power other than for the purposes contemplated by the Nurses Act , and certainly not on any discriminatory grounds. 59 The NBV submitted that there was nothing unlawful about the NBV's subsequent decision on 14 October 2004 to impose conditions on Ms Bahonko's registration. Under s 48 of the Nurses Act , an appointed panel may, after considering all submissions made at the formal hearing into the professional conduct of a nurse, make a finding that the nurse has engaged in unprofessional conduct of a serious nature and may, among other things, cancel the nurse's registration or impose conditions, limitations or restrictions on the registration of a nurse. The NBV's decision to impose various conditions on Ms Bahonko was made after a formal hearing on 27 September 2004, which Ms Bahonko chose not to attend. It was submitted that there is no evidence to suggest that the NBV's decision on 14 October 2004 was made on any unlawful discriminatory ground. 60 The NBV submitted that, even if Ms Bahonko's allegations against its conduct in the investigations are well-founded (which it does not accept), those allegations do not demonstrate that those decisions were made on any ground of unlawful discrimination. 62 The Minister submitted that Ms Bahonko's material does not reveal how she could make a credible claim that the Minister discriminated against her. 63 The Minister referred to the decision of Weinberg J concerning a discrimination proceeding brought by Ms Bahonko against the Royal Melbourne Institute of Technology ('RMIT') and others: see Bahonko v RMIT [2006] FCA 1325. In that case, his Honour was similarly faced with an application for an extension of time, as Ms Bahonko had filed out of time, and an application for summary judgment made by one of the respondents. It is clear that the Commission acted correctly in terminating her complaints, having regard to the material that Ms Bahonko placed before it. The additional material placed before this Court in support of her application for review of the Commission's decision takes her case no further. It was submitted that the additional material placed before this Court takes her case no further. In the alternative, it was submitted that if the material does take the case further, it is not the same or substantially the same as those in her complaints, and is therefore outside the scope of review by this Court under s 46PO(3). 65 The Minister submitted that the Court has no jurisdiction to hear Ms Bahonko's complaints in relation to religious and political opinions and relied upon Bahonko v RMIT [2006] FCA at [70] to [71] per Weinberg J. 66 In relation to discrimination on the grounds of race and disability, it was submitted that Ms Bahonko made no identifiable or substantiated allegations capable of falling within the various provisions of the RDA and the DDA, and on this basis, the application should be summarily dismissed. Whilst the Department of Human Services has portfolio responsibility for the NBV, you have provided no evidence to suggest that [the Minister for Health] had any direct role in the NBV's decisions about your registration. The NBV was established pursuant to s 65(1) of the Nurses Act . It is a body corporate, and pursuant to s 65(2)(c) , it could sue and be sued in its own name. Pursuant to s 67 , the NBV consisted of 12 members nominated by the Minister and appointed by the Governor in Council. The NBV's powers, functions and consultation requirements were generally set out in s 66 of the Nurses Act . As mentioned above, it had power to suspend the registration of a nurse during the conduct of an investigation into his or her professional conduct and to make a determination to place conditions on the registration of a nurse following a formal hearing: see respectively ss 25(1)(a) and 49 (2)(a). By operation of s 51 of the Nurses Act and s 21A of the Evidence Act 1958 (Vic), at a formal hearing, the members of an appointed panel had the same privileges and immunities in relation to their acts as if they were done in action in the Supreme Court of Victoria. Whilst s 66(3) of the Nurses Act provided that the NBV must consult with the Minister and have regard to her advice in carrying out its functions and exercising its powers, its decisions were its own. Given the application of s 21A of the Evidence Act 1958 (Vic), this is particularly the case when the NBV was acting in a formal hearing. 68 Ms Bahonko claimed the Minister had vicarious liability pursuant to s 18A of the RDA. It was submitted that the NBV is plainly not the employee or agent of the Minister. The Minister was not said, in the Nurses Act , to be the NBV's employer. The fact that the Minister had certain statutory functions in relation to the NBV does not make her liable for the actions of it. The Minister relied upon the decision of Weinberg J in Bahonko v RMIT [2006] FCA at [77] to [83] where he dismissed similar allegations against the Minister for Education and Training. His Honour specifically stated that s 18A of the RDA was confined to the acts of agents and employees and that the RMIT was not an employee or agent of the Minister for Education and Training even though the RMIT too was a body corporate whose members were appointed by the relevant Minister and in relation to which that Minister had a number of statutory functions. 70 Accordingly, the Minister submitted that the applicant had no reasonable prospects of success. Ms Bahonko claimed the respondents have engaged in unlawful conduct contrary to the RDA, the DDA and the HREOC Act. 72 Ms Bahonko's primary claim was that the actions of the NBV in its decision to suspend her registration, investigate Ms Bahonko's alleged professional misconduct, and ultimately impose conditions on Ms Bahonko's nursing registration, were based on her race, descent, national or ethnic origin, political opinions and actions, religious beliefs and imputed disabilities and had the unlawful purpose or effect of nullifying her enjoyment of certain rights, and thus constituted unlawful discrimination under the RDA, DDA and HREOC Act. 73 In particular, Ms Bahonko claimed that the conditions and restrictions imposed by the NBV on her registration as a nurse contravened s 9(1) and 9(1A) of the RDA in that she was subject to less favourable treatment on the basis of her "race". Ms Bahonko submitted that the meaning of "race" included an implied meaning of moral choice, values and consciousness, rather than referring to the colour of her skin or geographical origin. On this implied meaning, Ms Bahonko claimed the NBV and all other persons involved belong to a "master race" of "moral perversion", to which Ms Bahonko does not belong. Rather, it was submitted, Ms Bahonko belonged to the race with "the orientation to good and truth". 74 Ms Bahonko submitted that the NBV's treatment of the complaints made against Ms Bahonko, in particular its decision to suspend her registration whilst investigating the claims and subsequently impose conditions upon her registration was a manifestation of discrimination on the basis of Ms Bahonko not belonging to the "master race". 75 Ms Bahonko also claimed that the use of the language the NBV adopted in its written determination of 14 October 2004 demonstrated its perceived racial superiority. Ms Bahonko submitted that the Panel's use of the word "superiors" in that determination demonstrated discrimination against her, implying she was from an inferior race. 76 In support of her claim for racial discrimination, Ms Bahonko described the nature of the respondents' actions as "systematic, systemic and increasing in viciousness". She submitted that the "moral perverts" have a "large and powerful Network of supporters in the most crucial social institutions; they have their own lawyers, Ministers and Government officials". She submitted that the purposes of the alleged discriminatory acts of the respondents and other parties were to nullify her rights. In this regard, she stated that the "nature of the [respondents'] actions is clearly racially motivated as it is longitudinal and has consequences of racial nullifications of me in all spheres of my life". She submitted that the respondents and the State of Victoria engaged in their actions "to cover up for and protect the primary offenders from criminal accountability" in relation to the incident at Moorfields on 6 May 2004. She submitted that those offenders belong to the "master race", which is the same racial make-up as the Minister and the CEO of the NBV and the police officers involved in the incident on 6 May 2004. 77 Ms Bahonko claimed that all the instances in which she has been involved are linked. In particular, Ms Bahonko referred to the Moorfields policy of withholding medication or treatment in circumstances where a patient has so requested, which she claims is "inhumane". 79 She submitted that the NBV's handling of the investigation was in "bad faith and on behalf of the perpetrators with intentions to perverse the course of justice". She claimed the NBV showed "extreme malice" and the investigation was "flawed and tinted". Ms Bahonko was particularly concerned with the NBV's willingness to accept the accuracy of all complaints made against her, despite her objections that the complaints made by Ms Riley were "vexatious, malicious, frivolous and fictitious". She claimed that there was demonstrated bias in the NBV suspending only her registration and not the complainant's registration. 80 Ms Bahonko also submitted that the NBV's subsequent handling of the matter and in particular, its conduct in these proceedings through its lawyers, strengthens the pattern of behaviour which is to unfairly discriminate against Ms Bahonko and deny her all rights. In addition, she pointed to being denied in 2004 assistance under the Victims of Crime Assistance Act 1996 (Vic) and the hearing of an alleged assault in the Magistrates Court. She alleged that the NBV and the Minister wilfully took part in the commission of crimes and their behaviour subsequent amounts to protection of the primary offenders. 81 Ms Bahonko also claimed that the NBV (amongst others) contravened s 17 of the RDA by inciting acts that are unlawful under the RDA. Ms Bahonko referred to the NBV "inciting judiciaries to psychological abuses in the face of the law". Ms Bahonko also referred to government solicitors interfering with all her proceedings, and claimed that such interference constitutes contempt of the Court. Ms Bahonko submitted the VCAT proceedings were corrupted and that the actions of the Victorian Government Solicitors on behalf of the NBV in seeking to strike out the application was "fraudulent" and "highly discriminatory" and part of a pattern of behaviour. A news article in the Herald Sun on 28 September 2004 which refers to Ms Bahonko's claims. The article was written by a VCAT reporter, and reported on the incident at Moorfields and the subsequent events leading to the suspension of Ms Bahonko's registration. There is no mention of Ms Bahonko's race, although the article does state her name. 2. A notice to nurses agents sent by the CEO of the NBV, Ms Milne-Roch, explaining the NBV's handling of the complaint against Ms Bahonko. The notice explains her registration was suspended until further hearing of the matter. 3. The June 2005 volume of 'Nexus', an NBV publication. The publication contains an article referring to the NBV defending its right to investigate complaints and suspend a nurse's registration during the investigation. It does not refer to Ms Bahonko by name, and there is no reference to her race or religion. Ms Bahonko alleged that Ms Riley told the police at the incident on 6 May 2004 that Ms Bahonko suffered from paranoia. Ms Bahonko claimed that due to that imputation, she has been denied work and consistently subjected to violence and threats of violence by the "Victorian Government's servants". Ms Bahonko relied upon ss 5 and 6 of the DDA, which defines direct and indirect discrimination on the grounds of disability, including an imputed disability. 84 Further, Ms Bahonko submitted that the actions of the NBV in these proceedings, in particular the bringing of its application on 20 December 2006 to appoint a guardian or administrator under s 66 of the Guardianship and Administration Act 1986 (Vic), contravened s 42 of the DDA. Ms Bahonko claimed that the respondents that section, which prohibits victimisation, by subjecting Ms Bahonko to detriment on the grounds that she brought this proceeding under the HREOC Act. Ms Bahonko also relied upon s 122, which makes it unlawful to cause, instruct, induce, aid or permit a person to contravene s 42. Ms Bahonko also complained of similar applications by the Victorian Government Solicitors in other proceedings involving Ms Bahonko. 85 Whilst most references in Ms Bahonko's material were to "the respondents", there were some specific allegations made against the Minister. Ms Bahonko claimed that the Minister was vicariously liable for the unlawful acts of the NBV. She claimed the Minister was responsible for the various assaults she was subjected to in the health care facilities in which she worked. Ms Bahonko stated that the Minister was a "key official and a direct link between various offenders and perpetrators". 86 Ms Bahonko also made allegations of the Minister's purposes for alleged discriminatory acts. Ms Bahonko claimed that due to the Minister's previous association with the Uniting Church, by implication the Minister was involved in promoting the Church's ideologies. Ms Bahonko specifically referred to her employ for seven years within the Uniting Church. She also referred to the Minister's role in appointing NBV officials. She claimed the Minister subscribes to the Uniting Church ideology, which is a different ideology to Ms Bahonko. Ms Bahonko claimed, therefore, that the Minister has an "ideological and racial agenda" in relation to her and treated people from a different background as "slaves". 87 Ms Bahonko also submitted the effect of the Minister's policies included that her rights were "nullified", and she pointed to instances in which she was refused certain medical treatments and health services, and as a result, caused Ms Bahonko to suffer for two years. She claimed that the Minister had engaged in "unprecedented human rights abuses, racial vilifications, discrimination and all the possible criminal activities". 88 In her written submissions, filed with the leave of the Court after hearing, Ms Bahonko described in great detail the effects and consequences of the alleged discriminatory acts of the respondents. In referring to a number of unfavourable decisions and incidents, and Ms Bahonko's current circumstances, it was submitted that the effects and consequences confirm that those actions are racially motivated. She claimed that anything positive and to her benefit is consistently refused by the respondents and the State of Victoria. 89 Ms Bahonko also raised claims against the respondents under the Equal Opportunity Act 1995 (Vic) for alleged discrimination on the basis of impairment, political beliefs or activity, race and religious belief and activity. Jurisdiction is not a mere technicality or matter of legal form to which s 46PR of the HREOC Act can apply: see Bahonko v RMIT [2006] FCA at 70 per Weinberg J. 91 As mentioned above, in relation to Ms Bahonko's complaint of discrimination on the grounds of religion and political opinions filed with the Commission, the Commission decided not to continue to inquire into the alleged acts or practices because, pursuant to s 32(3)(c)(ii), the allegations were lacking in substance. The Commission stated that this aspect of the claim was finalised and if Ms Bahonko disagreed with its decision on this aspect, she may apply for review of the decision by this Court or the Federal Magistrates Court under the ADJR Act. No application before me on this basis was brought or pursued. The application before me is pursuant to s 46PO of the HREOC Act. 92 However, assuming in favour of Ms Bahonko that the descent and ethnic origin grounds are substantially the same as the race and disability grounds alleged in the complaint, it appears that the grounds set out in the application other than religious belief and political opinions are within the jurisdiction of the Court and the merits must be considered. 93 I do not consider it appropriate to strike out those paragraphs of Ms Bahonko's material that goes beyond the decisions of the NBV on 24 May 2004 and 14 October 2004, for which the NBV contended. It is clear that one key aspect of Ms Bahonko's claims is that all the events are connected and demonstrate a web of discrimination and she attempts to draw conclusions about the specific decisions of the NBV the subject of the complaint by reference to other material. 95 In relation to Ms Bahonko's submissions on the Equal Opportunity Act 1995 (Vic), it must be noted that Ms Bahonko does not seek any relief in her application under that Act. Therefore, even if the Court had jurisdiction to hear a matter arising under that Act, no such matter arises in this proceeding against the NBV or the Minister. There is certainly no evidence that the procedures required to be followed in that Act were followed. Ms Bahonko did not file a complaint with the Commission (as that term is defined in that Act) or that such complaint was referred to VCAT. Further, and in any event, this Court has no jurisdiction to review a decision of the Commission (as defined in that Act) or VCAT, which is properly the subject of the jurisdiction of the Supreme Court of Victoria: see s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic); s 211 of the Equal Opportunity Act 1995 (Vic); and Scherbakova v Royal Melbourne Institute of Technology [2000] FCA 1566 per Weinberg J. 96 Accordingly, I consider the complaints relevant to Ms Bahonko's application to extend time are those relating to discrimination on the basis of race, descent, ethnic origin and imputed disability under the RDA and the DDA, and I will consider these on the basis of all the material put forward concerning such discrimination. 100 I take Ms Bahonko's allegation of indirect racial discrimination to be that the NBV's decision to impose restrictions on Ms Bahonko's nursing registration constituted conduct described under s 9(1A) and was unlawful as such conduct had the requisite unlawful purpose or effect under s 9(1). 101 Putting aside the correctness of Ms Bahonko's premise that "race" as provided for in the RDA includes a distinction between a so-called "master race" or "evil people" and those who do not belong to such a race, there is simply no evidence to suggest that the NBV's decision to investigate the complaints made against Ms Bahonko was done on the basis of her race, colour, descent or national or ethnic origin. Section 22(1) of the Nurses Act required the NBV to investigate any complaint about the professional conduct of a registered nurse. Section 22(2) required the NBV to conduct a preliminary investigation in order to determine whether or not a formal hearing should be held. Whilst I understand that Ms Bahonko was displeased with the NBV's decision, there is no evidence to suggest that it was based upon race, color, descent or national or ethnic origin. In this regard, I agree with the Commission's decision to dismiss Ms Bahonko's claims, on the basis that she had "not provided any evidence to suggest that the [NBV] treated [Ms Bahonko] less favourably than it would have treated a person without [Ms Bahonko's] disability or who was of a different racial background about whom it had received complaints". It is certainly not sufficient evidence of racial discrimination that Ms Bahonko is of a different "racial makeup" to members of the NBV. 102 Furthermore, other than bald assertions, there is no evidence to suggest that the NBV's decision to suspend Ms Bahonko's registration was done on any unlawful discriminatory ground. As set out in the NBV's submissions, there is no doubt that the NBV had the power, under s 25 of the Nurses Act , to suspend the registration of a nurse. There is no evidence to suggest that the exercise of that power was done for any reason outside the contemplated purposes of the Nurses Act , let alone for a discriminatory reason. There is nothing in the material to suggest that Ms Bahonko was treated less favourably than other nurses against whom investigations have been commenced although I note that it was the first time the NBV exercised the power. However there is nothing to suggest that it was on the basis of Ms Bahonko's race, colour, descent or national or ethnic origin. 103 Similarly in relation to Ms Bahonko's complaint against the NBV about its decision to impose conditions, there is no evidence that the decision was made on any unlawful discriminatory ground. As was submitted by the NBV, it had power under the Nurses Act to impose conditions on the registration of a nurse, and there is nothing to suggest that its decision to exercise that power was in any way an act done on the basis of Ms Bahonko's race, colour, descent or national or ethnic origin. On the contrary, the evidence suggests that, after holding a formal hearing into the complaints made against Ms Bahonko's professional conduct, the NBV-appointed Panel took an informed view, and made its decision on the basis of the evidence before it. The Panel gave reasons for accepting or rejecting certain evidence, and on a detailed review of its statements, I can find no basis for accepting Ms Bahonko's allegations. 104 In relation to the claim for indirect discrimination, the conditions imposed seem to be reasonable given the nature of the alleged professional misconduct, but in any event there is no evidence to suggest that in the circumstances, they were unreasonable. Further, there is no evidence that the conditions were made for the purpose or had the effect of impairing any of Ms Bahonko's enjoyment of certain rights compared with people of a different racial background upon whom the same restrictions or conditions were placed. The conditions were simply made on the basis of investigations into her professional conduct and do not single her out on the basis of her race. There is no credible claim on this basis. 105 The NBV's findings against Ms Bahonko, whilst clearly unfavourable to her, are not on any proper view based upon her race, colour, descent or national or ethnic origin. The findings of the NBV relate to her conduct professionally and in my view the NBV gave lawful reasons to justify its findings. I find no warrant on the material before me to go behind these reasons. If there was some material other than bald assertions to suspect that the reasons given were not given bona fide or were not the true reasons for the decision, then the court would be entitled to form a view which is not constrained by these reasons. This is not the case before me. 106 It is unnecessary for me to consider Ms Bahonko's numerous submissions about the alleged purposes and effects of the NBV's conduct, as she has not satisfied me on the first aspect of unlawful discrimination, that the NBV has done any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin. In particular, I refer to Ms Bahonko's claims that the purposes of the NBV's conduct were to nullify her rights in all spheres of her life and cover up for alleged criminal conduct connected to the incident on 6 May 2004. In any event, there is no foundation in the evidence to support Ms Bahonko's contention that the NBV and others were involved in a web of conduct to nullify all her rights. 107 I should mention that I do not accept Ms Bahonko's claim that the NBV's use of the word "superiors" constitutes or evidences unlawful discrimination. There is no basis to support the view that the use of the term meant anything other than professional superiors. That word is commonly used in a professional context to refer to a person's boss or manager. 108 In relation to Ms Bahonko's claim under s 17 of the RDA, there is no evidential basis to support such a claim. There is no evidence to support such a claim. The two publications to which Ms Bahonko referred that were published by the NBV, which I have set out above, do not provide any evidence that the NBV has contravened s 17. The other article relied upon by Ms Bahonko was written by a VCAT reporter, who is not properly the subject of this claim and, in any event, cannot on any view fall within the ambit of s 17. 110 To the extent that her claim relates to the NBV's solicitors inciting judiciaries to do unlawful acts, the claim is similarly without any evidential foundation. There is no evidence, other than mere assertion, that the NBV's solicitors have incited the doing of any unlawful acts, and to suggest that their mere involvement in these proceedings constitutes a contravention of s 17 is not tenable. 111 In relation to Ms Bahonko's claims of discrimination on the basis of disability, she made reference to ss 5 and 6 of the DDA which merely define direct and indirect discrimination. No basis was suggested leading to the conclusion that there was any unlawful discrimination, and other than general assertion, no evidence was adduced specifically in relation to any unlawful discrimination. 112 Ms Bahonko's claim that the NBV contravened s 42 of the DDA is similarly without foundation. Section 42(1) makes it an offence for a person to commit an act of victimisation. Section 42(2) provides that a person is taken to have committed an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that, relevantly, the other person has brought proceedings under the DDA or the HREOC Act against any person. There is simply no evidence before me to support this claim. It is not enough for Ms Bahonko to show that she has suffered detriment as a result of the guardianship applications. She must show the NBV caused, or threatened to cause, such detriment on the grounds that Ms Bahonko brought this proceeding. There is no evidence which demonstrates such a causal connection on the part of the NBV and this claim is without merit. 113 In view of the above reasons, I would not grant Ms Bahonko further time to institute the proceeding against the NBV. Further, to the extent that other matters are alleged against the Minister, the allegations involve no particularisation, and are put in wide and exaggerated terms. No evidence is properly adduced to support these claims. 115 Ms Bahonko also claimed that the Minister was vicariously liable under s 18A of the RDA for the conduct of the NBV. In so far as this claim depends upon establishing that the NBV was responsible for unlawful discrimination, the claim must fail. As I have found that there is no evidence to support a claim that the conduct of the NBV amounts to unlawful discrimination, the Minister cannot be liable for anything the NBV did or did not do. 116 In any event, I accept the Minister's submissions that the Minister's role in relation to the NBV was limited, in the same way Weinberg J found the role of the Minister for Education and Training was limited in Bahonko v RMIT [2006] FCA 1325. The Minister was not directly involved in the decisions and conduct of the NBV, but rather the NBV was constituted as a distinct and separate body under the Nurses Act and its decisions were its own. 117 Further, and in any event, s 18A is confined to the acts of agents and employees which, as the Minister submitted, does not extend to the NBV, as the NBV is not an employee or agent of the Minister. True it is that the Minister appoints NBV members, but this does not make the Minister liable for actions of the NBV in relation to investigating professional conduct of nurses and imposing conditions on nurses' registrations: see also Bahonko v RMIT [2006] FCA 1325 at 78. 118 Similarly, Ms Bahonko's claim that the Minister contravened s 122 of the DDA depended upon my finding that the NBV contravened s 42 of the DDA. On the basis of my finding above that there is no evidence to suggest that the NBV contravened s 42 , this claim is without merit. 119 I accept the Minister's submissions that Ms Bahonko did not make any credible claim against the Minister, and refuse her application for an extension of time to bring proceedings against the Minister. There is nothing to suggest that these people were employed by, servants of, or agents of, or "protected by", the NBV and accordingly their conduct is not properly the subject of these proceedings. There is no evidence that any of those persons' conduct was discriminatory, and in any event, such conduct occurred prior to and without the involvement of the NBV. Nor am I of the view that there is any evidence to suggest that the NBV or the Minister sanctioned the behaviour of Ms Turnbull and Ms Riley. There is simply no evidence to support these allegations. 121 In relation to the claims against other people related to the NBV, in particular the NBV's solicitors and counsel, there is no evidence that any of these persons' conduct was unlawful under the RDA or the DDA. Other than a number of bald assertions and accusations, there is nothing to support her contention that there is a conspiracy between all persons involved. 122 By way of example, Ms Bahonko pointed to the NBV's solicitors' application to strike out Ms Bahonko's claim in VCAT. By letter dated 30 July 2004 from Russell Kennedy on behalf of the NBV to Ms Bahonko, it was stated that the NBV applied to strike out Ms Bahonko's application in VCAT on the basis that it was misconceived. In particular, it was stated that, in their view "VCAT does not have jurisdiction to hear the application for review in this instance, as a decision of the Board to suspend registration is only reviewable by VCAT when the Board has not instituted an investigation within a reasonable time of having suspended the registration". There is nothing in this correspondence or their actions to support the contention made by the applicant against the NBV's solicitors. Ms Bahonko has attempted to relate by mere assertion all incidents which do not go in her favour, and conclude that the behaviour is somehow orchestrated by the NBV on discriminatory grounds. However there is no evidence to support the alleged links and no merit to these general allegations. Under this provision, the respondents do not need to show that the applicant's case is hopeless --- it is sufficient that there is no reasonable prospect of the applicant succeeding in the proceeding. The lack of substantive material from Ms Bahonko, and the material provided by the NBV, demonstrates that there is no reasonable prospect of Ms Bahonko succeeding at trial either against the NBV or the Minister. Whilst Ms Bahonko is certainly aggrieved by a sequence of circumstances, I can find no basis to support any allegation of unlawful discrimination, and the respondents should not be further vexed by unjustifiable proceedings and forced to incur unnecessary costs. There is no evidence to suggest that Ms Saunders has been involved in "deception/fraud" or "obstruction of justice, trickery, frauds, making false statements" on 1 September 2006. There is nothing to suggest that the actions of Ms Saunders were taken other than in the interests of her client and in accordance with her duties to the Court. Accordingly, the orders sought should not be made and the motion will be dismissed. She also filed a notice of motion dated 28 May 2007 with an accompanying statement of charge. Her claims focused on their involvement generally in these proceedings, including the bringing of the summary dismissal applications, their management of the evidence in this proceeding, their perceived conflicts of interest, and their applications seeking to appoint a guardian. The crux of her submission was that their behaviour amounted to protection of the primary offenders, and was generally misleading to the Court. 128 I can see no basis for making any such orders. Ms Bahonko has failed to raise any clear allegation of contempt against the various persons, and Ms Bahonko has not sought to raise any contempt in the proper manner. The statement of charge accompanying her motion, notice of which is dated 28 May 2007, is inadequately particularised, vague and should be dismissed. Further, the evidence before the Court does not disclose any proper basis for the Court of its own motion instituting contempt proceedings. Therefore, to the extent that application is made seeking to pursue such orders, it should be dismissed. The relevant notice was given by Ms Bahonko to the Attorneys-General of the Commonwealth and of the States, but none of the Attorneys-General made any submissions to the Court. 131 The notice of a constitutional matter, filed with the Court on 17 May 2007, does not provide much indication of the nature of the alleged constitutional matter, save from mentioning s 117 of the Constitution . In the notice, Ms Bahonko made a number of assertions, none of which amount to any proper issue arising under the Constitution or a matter involving its interpretation. Instead, she rehearsed the facts and made a number of bald assertions. There is simply no material to support any claim that any provision of the Constitution has been breached in the way asserted by Ms Bahonko. However in view of the applicant's submissions on this question, I will deal with it independently. 133 The applicant's motion, notice of which was dated 3 October 2006, sought leave to apply out of time for leave to appeal from the interlocutory orders made by Ryan J setting a timetable for the filing of notices of motion for summary disposal of the proceedings by the respondents. Ms Bahonko submitted that such leave was given in her absence and ought to be set aside. The complaint is not so much directed to the timetabling in itself, but in Ryan J giving leave for the application itself to be made by the respondents and it having been made in her absence. 134 The orders made by Ryan J were in effect only timetabling directions. No leave was actually required to bring the applications in themselves. His Honour was effectively setting down a time within which applications ought to be filed and served in accordance with case management principles. Whilst the orders may be read as giving leave to bring the applications, the true purpose was to put a limitation upon the timing of their filing and serving. No natural justice issue arises in these circumstances where in fact it is the respondents that have had a limitation placed upon them in which to bring their applications for summary dismissal. There is no basis to set aside the orders made by Ryan J, being orders made in the proper exercise of his discretion. 135 Further, contrary to Ms Bahonko's argument, it is not improper for a party to a proceeding to apply for summary judgment of a matter which, in their view, has no prospects of success. This is a mechanism provided for in the Rules to protect the interests of defending parties in litigation. Accordingly, I would dismiss Ms Bahonko's motion, notice of which was given on 3 October 2006. In this proceeding, the specific complaints against the State of Victoria seem to be limited to general and broad allegations of involvement, at most by way of oversight of the alleged discriminatory conduct. However, the evidence does not come close to establishing that the State of Victoria is a necessary or proper party to the proceedings, or that the State of Victoria (through the "Victorian Government") undertook the behaviour complained of by Ms Bahonko. In any event, proceeding number VID 828/06 has now been finalised in this Court and a special leave application is apparently waiting to be heard by the High Court. Accordingly, proceeding number VID 828/06 is no longer relevantly available to be joined with this proceeding. All other motions of Ms Bahonko filed in this proceeding should also be dismissed. I will hear the parties as to costs. I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

application pursuant to s 46po of the human rights and equal opportunity commission act 1986 (cth) allegation of unlawful discrimination racial discrimination disability discrimination complaint made to human rights and equal opportunity commission complaint terminated as lacking in substance whether allegations of religious or political discrimination also before court whether allegations pursuant to the equal opportunity act 1995 (vic) also before the court application to extend time for filing application discretion of court principles to be applied in exercising discretion whether merits of applicant's claim sufficient to warrant exercise of discretion whether any reasonable prospect of success discrimination law practice and procedure

At that time the Minister was the Honourable Senator Amanda Vanstone. Since then both the title of the portfolio, and the holder of that title, have changed. 2 The decision under review was to cancel the applicant's absorbed person visa on the basis that he did not pass the character test. That decision was taken pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act "). He is a citizen of the United Kingdom. He arrived in Australia in August 1977 together with his parents, sister and younger brother. On arrival he was granted permanent residency status. 4 It is a matter of contention between the parties as to which type of visa the applicant held from 1 September 1994, being the date on which the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) came into effect. The applicant submits that pursuant to those Regulations he was granted a transitional (permanent) visa. The Minister submits that whilst those Regulations had the effect of continuing the applicant's permanent residency status, pursuant to s 34 of the Act the applicant was also deemed to have been granted an absorbed person visa. That was on the basis that he had been a non-citizen in the migration zone prior to 2 April 1984, and before that date had "ceased to be an immigrant". 5 On 26 March 2001 the applicant pleaded guilty in the Supreme Court of Victoria to one count of manslaughter. He was sentenced to a term of nine years' imprisonment, with a minimum non-parole period of seven years. Prior to that, he had a lengthy criminal history going back at least as far as 1982. 6 By letter dated 29 June 2006, addressed to him at the Fulham Correctional Centre, the applicant was served with a notice of intention to consider cancellation of his absorbed person visa. In that letter he was also informed that if a decision were made to cancel his absorbed person visa, s 501F(3) of the Act would operate to automatically cancel his transitional (permanent) visa as well. He was provided with the opportunity to comment upon certain matters and to provide the Minister with any further information that he wished to have taken into account. He was told that any response must be received by close of business on 24 July 2006. 7 On 11 July 2006 Victoria Legal Aid, acting on behalf of the applicant, requested an extension of time for the preparation of his submission in response to the Minister's notice. On 18 July 2006 the Department wrote to Victoria Legal Aid granting the applicant an extension until 21 August 2006. On 16 August 2006 Victoria Legal Aid provided a detailed submission on the applicant's behalf. 8 On 12 October 2006 the Department wrote to Victoria Legal Aid setting out further information that it considered relevant to the notice of intention to consider cancellation. The Department invited the applicant to comment upon that information. On 24 October 2006 Victoria Legal Aid responded on his behalf to that letter. 9 As already indicated, on 1 December 2006 the Minister made a decision to cancel the applicant's absorbed person visa. The decision also restated that s 501F(3) operated to cancel automatically any other visa held by the applicant. Several days later the applicant was transferred from Port Phillip Prison to immigration detention, where he has remained ever since. She found that the applicant had a substantial criminal record, and that by reason of the sentence imposed for manslaughter, and s 501(6) and (7)(c) of the Act , he did not pass the character test. 11 The Minister considered various matters set out in Ministerial Direction No 21, being a Direction under s 499 of the Act ("the Direction"). The Direction is said to provide guidance to decision-makers in determining whether to refuse or cancel a visa under s 501. If a non-citizen does not pass the character test, decision-makers are required to have regard to three primary considerations and a number of other considerations. The Direction states that a person's previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. 13 In relation to primary consideration (b), the Direction posits that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or there is a significant risk that they will breach this trust, or where the non-citizen has been convicted of offences, it may be appropriate to cancel the visa held by such a person. 14 In relation to primary consideration (c), the Direction makes it clear that the best interests of the child are to be taken into account only where the child is, or would be, less than 18 years of age at the time the decision is intended to come into effect. In general terms, the child's best interests will be served if he or she remains with his or her parents. However, countervailing considerations which may point to the child's best interests being served by separation from the non-citizen include, but are not limited to, any evidence that the child has been abused or neglected, or suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 15 Under the ambit of "other considerations" the Direction includes factors such as the extent of disruption to the non-citizen's family, business and other ties to the Australian community, marriage to or a relationship with an Australian citizen or permanent resident, and the degree of hardship which would be caused to immediate family members lawfully resident in Australia. The Direction provides that factors such as these should be taken into account but generally be given less individual weight than the primary considerations. 16 In relation to primary consideration (a), the protection of the Australian community, the Minister took into account the seriousness and nature of the applicant's conduct, the likelihood that such conduct might be repeated, and the question of general deterrence. She found that the conviction of manslaughter involved an offence which was very serious. She took into account the fact that in addition to his manslaughter conviction he had a number of other convictions for various offences. These included convictions involving acts of physical violence and the use or possession of weapons. The Minister regarded these matters as weighing in favour of cancelling the applicant's visa, and said that she gave them great weight. 17 The Minister went on to note that the applicant was first convicted in January 1982 "when he was 15 years old", and stated her belief that he could be considered to be a recidivist. She observed that the applicant had a number of positive urine results while in prison, indicating that he was using cannabis even while serving his sentence for manslaughter. She took into account information that the applicant had provided concerning various medical conditions and pain management which she regarded as going some way towards explaining his use of cannabis. However, the fact that he continued to use illicit drugs while in prison suggested that he was not completely able to control his substance abuse. The Minister said that she believed that there was a chance that the applicant may re-offend. That weighed in favour of cancelling his visa. She said that she gave moderate weight to that consideration. 18 The Minister said she gave no weight at all to whether cancelling the applicant's visa would act as a deterrent to other non-citizens who might engage in similar activities. 19 When it came to primary consideration (b), the expectations of the Australian community, the Minister said that non-citizens were expected to obey Australian laws. However, she also accepted that the Australian community would have some compassion for the applicant's situation. He had entered Australia in 1977, aged 11, and had lived here continuously since that time. Moreover, his immediate family, including his son, lived in Australia and he had had little or no contact with relatives overseas. The Minister concluded that in view of the seriousness of his offence and the extent and nature of his criminal history the community would expect his visa to be cancelled and that he be removed from Australia. That expectation weighed in favour of cancelling his visa, and the Minister said she gave moderate weight to that consideration. 20 Finally, the Minister had regard to primary consideration (c), the best interests of the applicant' s 14 year old son. She noted that prior to his incarceration the applicant did not live with his son or have responsibility for his day to day care. However, the Family Court had ordered that he should have joint responsibility with the child's mother for his long term care, and that he should have regular contact with his son. 21 The Minister accepted that there was a strong bond between the applicant and his son. She also accepted that he was a committed father who was determined to do all he could to ensure that his son had a successful future. She accepted that his removal from Australia would have a detrimental effect on his son. She added, however, that she had also considered the possibility that the applicant may re-offend and the negative effect upon his son if this were to occur. She concluded that it would be in the best interests of the applicant's son that his father remain in Australia. She said that that consideration weighed against cancelling his visa. She said that she gave great weight to that consideration. 22 The Minister said that she also took into account, under the rubric of "other considerations" the hardship and distress that would be caused to the applicant and his immediate family if he were to be removed from Australia. She said that she gave that consideration moderate weight. I considered all relevant matters including, an assessment against the character test as defined by s501(6) of the Migration Act 1958 , Ministerial Direction 21 under s499 of that Act and all other evidence available to me, including evidence provided by Mr MOORE and on his behalf. In reaching my decision I concluded that the seriousness of Mr MOORE's conviction for Manslaughter and his criminal history, and, to a lesser extent, the expectations of the Australian community outweighed all other considerations. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MOORE's visa under s501(2). The Applicant was at the time of the decision of the Respondent not the holder of an absorbed person's visa; rather he was the holder only of a transitional (permanent) visa which was not cancelled by the decision of the Respondent nor taken to be cancelled by operation of sub-s. 501F(3). The Respondent failed to exercise the jurisdiction conferred by s. 501(2) of the Act , or alternatively acted in excess of jurisdiction, by failing to take into account as a primary consideration, or at all, the best interests of ... the child of the Applicant. The Respondent failed to accord to the Applicant procedural fairness by refusing on 11 August 2006 to allow to the Applicant a further extension of the time in which to respond to a notice of intention to consider cancellation dated 29 June 2006 despite the illness and hospitalisation of the lawyer who was then assisting the Applicant with his proposed response. 26 The only issue to be considered in relation to this ground is whether the applicant had "ceased to be an immigrant", within the meaning of that expression in s 34(2)(b) of the Act , before 2 April 1984. If, as the applicant submitted, he had not ceased to be an immigrant as at that date, he would not be taken to have been granted an absorbed person visa on 1 September 1994 (the date when the former system of entry permits came to an end, and was replaced by the new visa system). 27 The applicant submitted that he had not "ceased to be an immigrant" because he had, as at 2 April 1984, accumulated a substantial number of convictions for serious offences which were antithetical to his having been absorbed into the community. 28 In support of that contention the applicant relied primarily upon the judgment of French J in Johnson v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 137 ; (2004) 136 FCR 494. In that case, Mr Johnson, a citizen of New Zealand came to Australia in 1981 at the age of six. He eventually acquired a lengthy criminal record. On 19 December 2002 the Minister purported to cancel his "special category visa" under s 501(2) of the Act on the basis that it was reasonably suspected that he did not pass the "character test". Mr Johnson submitted that he held an "absorbed person visa" pursuant to s 34 , and not a "special category visa". He submitted that the decision of the Minister to cancel a non-existent visa was therefore affected by jurisdictional error. 29 French J accepted that contention. He held that the Minister's decision to purportedly cancel a visa not held by the applicant was a nullity. 30 His Honour discussed in some detail the authorities that bore upon the constitutional question which underpinned the criteria for an absorbed person visa, namely under what circumstances does a non-citizen who has entered Australia cease to be an immigrant for the purposes of the immigration power under s 51(xxvii) of the Constitution . He referred to Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277; R v Macfarlane; Ex parte O'Flanagan [1923] HCA 39 ; (1923) 32 CLR 518; Ex parte Walsh; Re Yates [1925] HCA 53 ; (1925) 37 CLR 36; O'Keefe v Calwell [1949] HCA 6 ; (1949) 77 CLR 261; Koon Wing Lau v Calwell [1949] HCA 65 ; (1949) 80 CLR 533; and R v Forbes; Ex parte Kwok Kwan Lee [1971] HCA 14 ; (1971) 124 CLR 168. His Honour also referred to a number of decisions of the Federal Court to the effect that the statutory designation of a person as a "prohibited immigrant" or "unlawful non-citizen" could prevent his or her absorption into the Australian community. 31 French J then discussed more recent High Court authority. He referred to Re Patterson; Ex parte Taylor [2001] HCA 51 ; (2001) 207 CLR 391, a case which concerned the extent of the naturalization and aliens power under s 51(xix) of the Constitution . Mr Taylor, who faced deportation on account of criminal conviction, was a non-citizen whose absorption into the Australian community was not in issue. He had come to Australia in 1966 as a child, and been educated and made his home in this country. However, he had not taken out Australian citizenship. The Minister had purportedly cancelled his "absorbed person visa" which Gaudron J suggested reflected a concession that he had been completely absorbed into the community prior to April 1984. That, of course, was one of the requisites for an "absorbed person visa". 32 In Ex parte Taylor the High Court held, by a four to three majority, that Mr Taylor, as a British subject, was not an alien but a subject of the Queen of Australia. As such the power to cancel a visa under s 501(3) of the Act could not apply to him. 33 Ex parte Taylor was effectively overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 in relation to the time from which British subjects entering Australia would remain as aliens for constitutional purposes notwithstanding their absorption into the community and the ending of their status as immigrants. As in Ex parte Taylor , the question of absorption was not an issue in Shaw . 34 Importantly for present purposes, in Shaw Callinan J (at [183]) accepted that the commission of serious crimes against the community may be inconsistent with a person's absorption into the community. He referred to Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 in that regard. He noted, however, that Mr Shaw had been living in Australia for more than twelve years before his first conviction which occurred when he was still a child. His Honour concluded that, in those circumstances, Mr Shaw had been absorbed into the Australian community by the time he came to the notice of the criminal courts. He added that he would not regard that first conviction, occurring as it did when Mr Shaw was so young, as putting him beyond the community of ordinary Australians. The time that has elapsed since the person's entry into Australia. The existence and timing of the formation of an intention to settle permanently in Australia. The number and duration of absences. Family or other close personal ties in Australia. The presence of family members in Australia or the commitment of family members to come to Australia the join the person. Employment history. Economic ties including property ownership. Contribution to, and participation in, community activities. Any criminal record. Rather, he said it illustrated "the multi-dimensional character" of the judgment involved. In his Honour's view, all the relevant factors, other than the time that had elapsed since the Johnson family's move to Australia, pointed strongly to the proposition that the family had become part of the Australian community as at 2 April 1984. Although Mr Johnson's criminal record was extensive, it only began in 1991. Accordingly, it had little or no bearing upon whether he had ceased to be an immigrant by April 1984. 37 It was submitted on behalf of Mr Moore, in the proceeding before me, that, in accordance with the authorities, his criminal record prior to 1984 was such that it precluded him from having been absorbed into the Australian community. As a result, he had not "ceased to be an immigrant" within the meaning of s 34(2)(b) of the Act , and therefore had not acquired an absorbed person visa. That in turn meant, using the reasoning of French J in Johnson, that the Minister had cancelled a non-existent visa. If that were so, s 501F(3) would have no application to this case because, as is implicit in the reasoning of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50 ; (2006) 230 ALR 370, that section can only be invoked in circumstances where a valid visa has been cancelled. 38 In order to fully appreciate the nature of the applicant's submission, it is necessary to set out in some detail Mr Moore's criminal history. It appears that at some stage, probably in 1981, he was convicted in the Children's Court in Melbourne on six counts of theft of a motor vehicle, three counts of unlicensed driving, five counts of burglary, and nine counts of theft. He was also convicted of one count of discharging a missile with intent to injure and one count of setting off fireworks without permission. The exact date of his convictions before the Children's Court is unclear, having been blanked out of the criminal history report set out in the application book. However, it is clear that Mr Moore appealed to the County Court from whatever orders were made in the Children's Court and was sentenced by the County Court on 22 January 1982 to 18 months' probation. 39 The criminal history report then records that on 13 January 1984 he was fined $100, in default five days youth training centre, on one charge of using indecent language in a public place. Finally, on 27 February 1984 he was dealt with at the Oakleigh Magistrates Court on charges of assault with a weapon, assault occasioning actual bodily harm, unlawful assault and wilful damage. He was fined a total of $600. 40 The applicant built up a lengthy criminal history after 1984. However, that is of only limited relevance when it comes to considering whether he had "ceased to be an immigrant" within the meaning of that expression in s 34(2)(b) as at 2 April 1984. 41 It is somewhat ironic that the applicant contends that his criminal record was so bad, as at 2 April 1984, that he had not been absorbed into the Australian community, while the Minister contends that, in reality, the offences which he had committed by that date were by no means so serious as to warrant that conclusion. The positions normally taken by the applicant and the Minister in cases involving cancellation of visas on character grounds are quite the reverse. 42 In any event, the Minister has proceeded throughout upon the basis that Mr Moore had an absorbed person visa as at 1 September 1994, having satisfied the requirements of s 34(2)(b) of the Act . That was the stance initially taken by the applicant as well. However, he no longer maintains that position. 43 In effect the only basis put forward in support of the applicant's contention that he had not ceased to be an immigrant as at 2 April 1984, and did not qualify for an absorbed person visa, was his criminal record as at that date. Whatever may be the merits, or otherwise, of treating a criminal record as an indication that a person has not been absorbed into the community, I am satisfied that Mr Moore's record, at the relevant time, was by no means so bad as to lead to that conclusion. He was, after all, only 15 years old when the County Court matters were dealt with, and still only 17 at the time of the proceedings in the Oakleigh Magistrates Court. None of the offences led to a custodial sentence. They do not strike me as having been so serious as to warrant the conclusion that the applicant had not ceased to be an immigrant by 2 April 1984. 44 I therefore reject the applicant's contention that he does not now, and never has, held an absorbed person visa. It follows that the Minister's decision to cancel that visa operates by law, pursuant to s 501F(3) of the Act , to cancel also his transitional (permanent) visa. 46 There is no substance to this contention. The Minister said that she gave primary consideration to the best interests of the child, which she regarded as a factor weighing against cancelling the applicant's visa. She said that she gave great weight to that consideration. There is nothing to suggest that she did not do so. 47 It was submitted on behalf of the applicant that the Minister must have paid only lip service to the best interests of the child, otherwise she would not have come to the decision that she did. In support of that submission counsel referred to Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 ; (2001) 107 FCR 133. There the Full Court held that the Administrative Appeals Tribunal had failed to treat the best interests of the children as a "primary consideration" in its determination. 48 In Wan , it was said to be of particular significance that the Tribunal had failed to identify anywhere in its written reasons for decision what the best interests of the children indicated that it should decide with respect to the application for a visa. It was also noted that the Tribunal had failed to describe the best interests of the children as a "primary consideration". 49 Neither of those factors is present in this case. The Minister plainly gave detailed attention to the best interests of the applicant's son, which she accepted favoured non-cancellation. She recognised that this was a primary consideration. She said she gave it "great weight". That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration. The balancing process described above accords precisely with the approach that the Minister herself adopted. 52 In truth, Ground 2, and the applicant's submissions in support of that ground, seek merely to have this Court engage in merits review. That the Court cannot do. In that case his Honour set aside a decision by the Minister to cancel the applicant's visas, namely an absorbed person visa and a transitional (permanent) visa, because the applicant had been denied procedural fairness. 54 In Sales the applicant was given only 14 days to respond to a letter hand delivered to him on 8 August 2006 together with a copy of the Direction that set out, over some 11 pages, the matters that the Minister regarded as relevant to her determination. The letter also included a number of other documents, such as extracts from the Act , the applicant's criminal history, pre-release reports of various dates, parole reports and a copy of the sentencing judge's remarks. 55 Allsop J took into account the fact that the applicant in Sales was not a well-educated man. He also inferred that his family were not "people of wide or deep resources", or otherwise of significant education. His Honour said that it was clear that the task at hand for the applicant and those concerned with his welfare was likely to be a difficult one because of the seriousness of the crime for which he had served 18 years in prison, namely a particularly callous and brutal murder. To require him to put forward in a coherent fashion a response to the Department's letter in the space of 14 days was unrealistic and plainly inadequate. 56 However, the case of Mr Moore can, in no way, be equated with Sales . As previously indicated, Mr Moore was served with a notice of intention to consider cancellation of his absorbed person visa no later than about 5 July 2006 (seven days after the date on which the letter was sent). He was told that any response must be received by 24 July 2006. 57 Had matters rested there, the applicant would have had reasonable grounds for complaint. Nineteen days is scarcely an improvement over the 14 days regarded as inadequate in Sales . However, on 11 July 2006 Victoria Legal Aid requested an extension of time within which to respond. On 18 July 2006 the Department granted an extension until 21 August 2006. Thus the applicant was given more than six weeks to provide a response to the Minister's notice, a period I regard as reasonable in the circumstances. 58 Indeed, the applicant's position was actually stronger than this. On 12 October 2006 the Department wrote to Victoria Legal Aid inviting comment on matters it considered relevant to the notice of intention to consider cancellation. On 24 October 2006, Victoria Legal Aid responded to that letter. There was nothing to suggest that the applicant could not have added anything further to his earlier submission, in support of his claim to be permitted to retain his absorbed person visa. He was not denied procedural fairness. Accordingly, Ground 3 is not made out. It follows that the application must be dismissed, with costs. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

application to review minister's decision to cancel visa on character grounds whether applicant held an absorbed person visa whether automatic cancellation of visa pursuant to s 501f(3) of migration act 1958 (cth) whether minister failed to take into account best interests of applicant's child whether applicant accorded procedural fairness migration

His wife accompanied him, but has since voluntarily returned to China. 3 On about 22 June 2003 the appellant applied for a visa for himself and his wife. He claimed to be of the Falun Gong religion and provided material with his application including a five page letter. The five page letter sets out in nine separate parts information which the appellant provided in relation to his application. 5 On 1 July 2003 the delegate of the Minister refused to grant the visa. On 27 July 2003 the appellant prepared an application for review to the Tribunal. He included his wife as an applicant. In section D of the application to the Tribunal which set out his reasons for making the application there was written 'please see my statement attached'. As I explained before , when I was departing China, the Authorities had not yet started actions against me so that I could leave China legally with no trouble. However, if I continued to stay in China, I could be in trouble, not for the reason related to Falungong as by then I had not become a Falungong member yet, but for the reason that the Bureau Chief of my work unit would take strong actions against me ( I gave full explanations in my previous statement ). Therefore the matter of issuing my PRC Passport while I was in China should not be a reason for the case officer to refuse my PV application. So I do not agree with the case officer's argument. 9 On 13 January 2004 the applicant's wife informed the Tribunal in writing that she was leaving Australia voluntarily the next day and wished to withdraw her review application. 10 By a decision dated 18 February 2004 but handed down on 11 March 2004, the Tribunal affirmed the decision not to grant a protection visa. 11 The Tribunal decision recited at [14] that it had before it the Department's file. It is apparent from the written reasons of the Tribunal that a considerable amount of detail as to the applicant's claims and history had been taken from the material in the departmental file, the principal source of which was the appellant himself. In his last position, he said that he worked directly under the bureau chief and there saw considerable corruption inside the bureau, presided over the bureau chief. He said that while corruption was, in effect, rife within the bureau he hated the corruption. He declined a gift from a local contractor, but it was left at his home when he was not there and he decided to report the matter to his bureau chief who became very upset and angry. Following this the bureau chief appeared to become quite cold towards him and he felt that a plan was being made to become rid of him. 13 At the end of 2002 the appellant claimed that the security section chief in the bureau, who was friendly with him, showed him a letter indicating that, falsely the appellant says, he was involved in Falun Gong activities which he considered to be part of a conspiracy to set him up by his chief. He was then questioned at a committee meeting and asked to explain the allegation, following which he was deprived of his position in the party. He says that he was warned by the security section chief to leave the bureau, because unless he did so he would be in trouble and his family could also be damaged. He said that at that time the import and export section of the bureau wanted to do business with an Australian company and that two staff were needed to travel here on business, as a result of which he and his wife decided to leave. The bureau chief was in Beijing on business, so he was able to leave without difficulty and arrived here with his wife on 4 June 2003. 14 He said that he was not a Falun Gong member and did not do anything about Falun Gong until after he had been in Australia for 2 weeks. Towards the end of June 2003 he became a member. He gave some description of the beliefs of Falun Gong and its founder. 15 The appellant gave as the reason that he left China what he had been told about the threats to him and his family, but he said that he had not at that time decided whether or not to seek refugee status. When he arrived in Australia he said that he saw the good points of the democratic system in this country and became a Falun Gong practitioner. He then decided to apply for refugee status. He said that it is well known that as a Falun Gong member he would be in serious political and religious trouble if he returned to China, and thus he should be allowed to stay. Secondly, he said that the Chinese Government was persecuting all Falun Gong members in China and that if he returned he would be punished politically, religiously and economically. He concluded that returning to China now 'means death'. This is so because he has a valid Chinese passport. However, notwithstanding the claims made by the applicant, I am of the view that most aspects of the applicant's evidence were vague, generalised, and lacked specific detail. I am of the view that the applicant elaborated and fabricated his claims to bring himself within the definition of a refugee . As a result the Tribunal concluded that it would not accept those claims. 18 The Tribunal then turned to consider the question of whether, because the appellant had claimed to have become a Falun Gong member after his arrival in Australia, he could be a refugee sur place. Again, the Tribunal concluded against the appellant's claim. That was clearly beyond the jurisdiction of that court, as it is beyond the jurisdiction of this court. The appellant also claimed that the Tribunal had failed to understand his claim or to consider relevant matters, but gave no basis for concluding that this had in fact occurred. Lastly, the appellant asserted that the Tribunal had refused to grant his application without any proper grounds. The primary judge said that the appellant had told the Court that a migration agent had informed him that it was not necessary to go to the hearing to which the Tribunal had invited him. His Honour said that that was very bad advice, as indeed it was. His Honour, on the arguments advanced before him concluded that the appeal had to be dismissed and assessed the appellant liable to pay the Minister's costs in the sum of $2,950. (2) The Tribunal failed to understand his claims and failed to consider relevant matters: 'Further particulars to be provided'. (3) The Tribunal exceeded its jurisdiction in arriving at the decision to affirm the Minister's decision not to grant a protection visa because he was not accorded natural justice thereby enliving jurisdiction under section 39B of the Judiciary Act 1903 : 'Further particulars to be provided'. (4) The Tribunal refused to grant a protection visa without any proper grounds and proper investigation. The appellant told me that he was unable to articulate any arguments in support of his claim because he did not understand the law and was not a lawyer. I explained to him that it was not the function of the Court to make a case for him, rather it was the function of the Court to adjudicate impartially between him and the Minister. And a court such as this, in cases where there has been no further evidence admitted on the appeal and no change in the law, can exercise its appellate powers only if satisfied that there was error on the part of the primary judge ( Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 ; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ). Apart from the ground I consider below, neither the notice of appeal nor the appellant's submissions identify any error by the trial judge or any other basis for me to exercise the Court's appellate powers. In his letter in support of the application for review made to the Tribunal, the appellant, dealing with the reasons he left China, said 'as I explained before' and 'I gave full explanations in my previous statement'. These statements incorporate by reference what the appellant had said to the delegate as contained in the departmental file for the purposes of s 424A(3)(b); that is, the information which he had explained before in his previous statement was given to the Tribunal by the references in his letter accompanying his application for review 'for the purpose of the application'. 25 But that leaves undetermined the extent of the incorporation by reference which thus occurred. 26 The Minister contends that the incorporation by reference is of everything which the appellant had put before the delegate, not just so much of the material as related to the events surrounding his leaving China. In section (b) of the appellant's letter accompanying his application for review (set out at [5] above) he asserts that he had not become a Falun Gong member while he was in China. 27 The Minister submits that the appellant intended that the Tribunal look at all the previous explanations within the letter and so it is argued, he provided all of that information for the purposes of his application for review within the meaning of s 424A(3)(b). If consideration of the material referred to by reference in section (b) of the letter were limited to his claims in relation to his activities and the events in China with which section (b) dealt, then the appellant would not have provided the Tribunal with the further information which was contained in his earlier application to the delegate concerning his activities in Australia and his claim to be a refugee sur place . 28 I have not been referred to, and my researches have not found, any case involving the test to be applied to determine whether an incorporation by reference is to be limited simply to that part of the earlier material provided by the appellant to the delegate which is specifically referred to in the application for review or extends more broadly. McHugh J said that s 424A was a statutory formulation of the obligation to accord procedural fairness in the conduct of a review (215 ALR at 181 [73]). It is not to the point that the tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the tribunal receives the adverse information as evidence from another person and the tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that "the Tribunal may " take various steps. The evident purpose of the provisions of s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). It is upon "the character of the decision". Has the tribunal validly decided the review? Or is the decision reached in the review, in breach of s 424A, invalid? Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case. And, it would follow, if this were a correct interpretation, that everything which the delegate referred to in his or her decision was also given by the applicant for that purpose. 32 I am of opinion that this construction is not open because the applicant, under s 412 of the Act, has a right to apply to the Tribunal for a review of the decision. The decision in a case like the present is simply the determination to refuse to grant a protection visa. The reasons for the decision are not made into information given by the applicant 'for the purpose of the application' simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of Division 4 of Part 7, and relevantly s 424A. 33 And part of the statutory function of the Tribunal is to decide the application for review by exercising its powers in accordance with s 415 and then giving what it considers to be the correct or preferable decision ( Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18 ; (1996) 189 CLR 1 at p 18). It forms that opinion after considering the views of the original decision maker (189 CLR at p 18), but if there is some matter comprising 'information' in the reasons for that original decision then in my opinion s 424A(1) requires that 'information' to be furnished to the applicant for review unless it is excepted in s 424A(3). The very language of s 424A(1)(a) denies the construction put here by the Minister for it contemplates 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review '. It is the decision, not the reasons for it or the information on which it was based, which the Tribunal could so affirm. 34 Thus, while the reasons for the original decision may not all be 'information' within the meaning of s 424A, no doubt some of the material before the original decision maker to which he or she referred in the reasons for that decision will be 'information' to which s 424A applies. 35 If the Parliament had intended that merely by seeking review of the decision --- relevantly to refuse a protection visa --- put before the Tribunal the reasons for arriving at that decision as 'information' within the meaning of s 424A(3)(b) given by the applicant for review for the purpose of the application, it could have said so. The decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 proceeded on this basis, namely, that the material put by an applicant for review to the original decision maker was not, simply because a review was sought, 'information' within the exception in s 424A(3)(b) unless the applicant for review had done something more to give that 'information' to the Tribunal. That decision has stood for nearly 5 years. The question here is what more is sufficient. 36 In this, as in a number of areas of the law, I am of opinion that the question whether an applicant for review has given information for the purpose of the application within the meaning of s 424A(3)(b) when it is sought to say that he or she 'republished' something which had been provided at a different time by him or her, it is necessary to make an objective assessment as to what a reasonable person in the position of an observer of the interchange would have understood. 37 In the law of torts, the law has created the 'reasonable person'. In the law of defamation, from which the notion of republication may have been sourced, the question as to whether a subsequent publication was intended by the original publisher or was a natural and probable result of providing the information in the first place is assessed objectively ( John Fairfax & Sons Ltd v Cojuangco [1988] HCA 54 ; (1988) 165 CLR 346 at 350: Webb v Bloch [1928] HCA 47 ; (1928) 41 CLR 331 at 363-366 and see as to the objective nature of the act of publication E Hulton & Co v Jones [1910] AC 20). 38 In the law of contract, the Court looks not at the subjective intentions of the parties to the contract as to what either intended to be conveyed by the words chosen but adopts the position that the construction of a contract is an objective process ascertained by what a reasonable person in the position of the parties, that is to say with knowledge of the objective matrix of facts with reference to which the parties contracted, would be taken to have intended by the actual words used ( Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at 462 [22] ; Toll FGCT Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 186-187 [60] ). 39 When parties to a contract intend to incorporate material by reference, likewise, the Court makes an objective assessment of what was intended to be brought into the contract (e.g. China Ocean Shipping Co Ltd v PS Chellaram & Co Ltd (1990) 28 NSWLR 354 at p 363B-E per Gleeson CJ, 395F per Samuels JA agreeing; Trustees Executors and Agency Co Ltd v Peters [1960] HCA 16 ; (1960) 102 CLR 537 at p 548 per Kitto J). And, when the question of a whether a term ought be implied into a contract is considered, the Courts have used the expression, in the past, whether an 'officious bystander' would have assented to the proposition that the parties intended, without expressly so stating, that the term form part of their contract: cp BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-284. 40 In contrast, in other areas of law, regard is had to the subjective effect on a person of representations or conduct. In Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 at 83-89 [98] - [110] the High Court discussed circumstances in respect of claims of misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) and the tort of passing off which were relevant to establishing either cause of action. The Court contrasted situations in which such claims were made, on the one hand, to identified individuals, with those on the other hand, to the public at large or to a section thereof (202 CLR at 84-85 [100]-[101]). In the former case a nexus may be easier to find because of the availability of evidence of the context in which the representation or conduct occurred. Where the case involves the public generally or a section of it, the court, inter alia, has regard to the effect of the conduct on reasonable members of the class (202 CLR at 85 [103], 86-87 [105]). That introduces an objective standard by reference to which conduct can be assessed. 41 Here, the difficulty in applying a subjective criterion, namely, what information did the applicant for review actually intend to give for the purpose of his or her application when making the referential statement, is that to do so would link the lawful exercise of the jurisdiction conferred by the Parliament on the Tribunal to the state of mind of the applicant for review. In other words, if a subjective test were to be applied, the applicant for review by his or her own expression of an intention at a time remote from the giving of the information in question, could determine whether or not the Tribunal had made a jurisdictional error. To compound the difficulty with the subjective approach, one can easily imagine a case where the Tribunal may reject the applicant for review's evidence as to his or her intention and thus accrue to itself jurisdiction which an objective test would deny it. 42 In SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 Gyles J held that there was a clear republication of original claims made in a declaration by the applicant for review as part of his application for review. That declaration critically examined the reasons given by the delegate for refusing his application in the course of which the there applicant for review referred several times to the claims that he had originally made. Gyles J held that there was a republication of the original claims made to the delegate in the application for review. The precise terms in which the republication was said to have taken place are not set out in his Honour's judgment. Each case will obviously depend on its own facts. In one sense applicants for review could be treated, on every occasion to be asking the Tribunal, because it is reviewing the original refusal, to review all that they had previously put to the delegate. But I am of opinion that that is not the proper construction of the general position having regard, to the terms of s 424A as construed by the High Court. 43 The Minister also relied on what Gray J had said in M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 and what Moore J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [20] when he was dealing with the SZBMJ case. Moore J dissented in this point. 44 Attention needs to be paid in each case to what s 424A(3)(b) identifies as the information 'that the applicant gave for the purpose' of the application for review. Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate. But such a result flows from the facts of the individual case. If the Parliament had intended otherwise it would have been easy to make the natural exception in s 424A(3) of the material which the applicant provided to the Minister originally and then to provide, as is now discretely provided in s 424A(3)(b), for other information. Because the Parliament has identified the elements integral to a fair procedure of review in the way in which Division 4 of Part 7 of the Act provides, I do not think it appropriate to add glosses to that or to provide easy means for avoiding consequences which may be inconvenient in the construction of the provision. 45 In my opinion, the lawfulness of the exercise of jurisdiction by the Tribunal was not intended by the Parliament in enacting Division 4 of Part 7 of the Act, and especially s 424A, to depend on the subjective intention of the applicant for review as to whether what he or she in fact gave as information, let alone whether it included, where there is ambiguity, what subjectively the person had in mind to include. If this were the test, results would differ in cases where the applicant for review did not give evidence at a hearing on the point and had to have his or her conduct assessed objectively, from cases where such evidence was given. 46 A surer guide to whether jurisdictional error will occur is afforded by an objective assessment of the kind I have described. The Tribunal will know from such an objective assessment in all cases from the time it receives information from an applicant for review whether or not it must comply with s 424A(1) in respect of 'information' which falls within the scope of the statutory obligation to afford natural justice. This will lead to consistency in decision making and to achieving the fairness of process which the Parliament intended by treating all applicants for review in the same way. Moreover, judicial review of the exercise of jurisdiction in this regard can proceed in a principled and logical manner. 47 To take an example common in every day life, when one refers to something that has been read in a newspaper, by referring to an article, the ordinary person would not understand the reference to embrace every other article in the same edition of the newspaper. 48 So the question in the present case is what a reasonable person would have understood the appellant to have included by his reference in his letter, forming part of the application for review, to the earlier material he had put before the delegate. 49 Applying the principle which I have identified, a reasonable person would have regard to the fact that neither the applicant for review nor the Tribunal would be taking an overly technical approach to their communications. However, the objective circumstances in which the exchange of information was taking place is in the context of a procedure dictated by the Parliament mandating what is required to be done in order that the Parliament's prescription of fairness in the process of assessing an application for review be followed. 50 I am of opinion that an objective person in the position of observing what was in the application for review in the present case would have understood the appellant to have been referring, and referring only, to his earlier explanation as to his circumstances in China, and not to his explanation of his Australian sur place claim which he elaborated in different words, albeit no doubt framed by his migration agent having regard to his difficulties with the English language. There was no 'republication' of the material the applicant had provided to the delegate relating to his activities in Australia. I am of opinion that a reasonable person would have said that the appellant's letter accompanying his application for review was identifying the points he wished to make and emphasise to the Tribunal and the information which he wished it to consider in order that he achieve a favourable outcome. It would render nugatory the purpose identified by the majority in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 for the relevant information to be identified and of communicating to the applicant for review what Hayne J described (215 ALR at 211 [208]) as '... the relevance to the review of the information that is conveyed'. DID THE TRIBUNAL COMPLY WITH SECTION 424A? The Tribunal had no further information than what had been put before the delegate and what was the subject of the application for review. Having formed the view, communicated in its letter of 8 December 2003, that on the written material before it, it was unable to make a decision in favour of the appellant, the Tribunal necessarily had regard to information in the file which, as it said in its reasons, was before it. Throughout the operative parts of its reasoning (in [24]-[31]), the Tribunal referred to the failure of the appellant to provide supporting documentation, details of the circumstances of his claim and the generality with which he expressed himself about important matters, including, his knowledge of Falun Gong. The applicant has not provided any supporting evidence of his Falungong membership in Australia, merely making assertions of what he had done. In this respect I am satisfied that section 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear for being persecuted for a Convention reason. I am of opinion that the Tribunal, in coming to its positive finding at [24] of its reasons that the appellant 'elaborated and fabricated his claims to bring himself within the definition of a refugee', took into account what it said was before it, namely all of what was in that file in the applicant's letter accompanying his application for a protection visa. If all of that was not information 'that the applicant gave for the purpose of the application' for review (see s 424A(3)(b)) because it had not been incorporated by reference in his application for review, then the appellant had to be given particulars of the balance of that information to which the Tribunal was having regard contained on the departmental file but not incorporated into the application for review. As Hayne J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 211 [208], s 424A(2) required the Tribunal to inform the applicant for review, among other things, of the relevance to the review of the information that was conveyed by the information which was extraneous to the application for review. 55 The Minister submitted that it was not necessary for the Tribunal to foreshadow to the appellant any reasoning process which it proposed to adopt in its determination of the application. That submission, however, does not meet the difficulty that no particulars were given about the information which the Tribunal proposed to use from the material which the applicant for review had put before the delegate nor did it inform him of 'the relevance to the review of the information that [was] conveyed', as s 424A(2) required. 56 Supplementary written submissions were filed on 3 March 2006 pursuant to directions which I made at the hearing to take account of the imminent decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. There, the Minister characterized the appellant's statement in his letter forming part of the application to the Tribunal for review, set out in [5] above namely: 'I gave full explanations in my previous statement' as inviting reference to the whole previous statement, not just that section which dealt with the subject matter of the appellant's work unit in China. The Minister submitted that there could '... be little doubt that the [a]ppellant intended that the Tribunal look at this material and thereby provided this information to the Tribunal ...' within the meaning of s 424A(3)(b). But, for the reasons I have given, I am of opinion that it is essential to consider, objectively, what was the extent of the material which the applicant for review was thereby giving to the Tribunal within the meaning of s 424A(3)(b). 57 The Minister made further submissions on 13 March 2006 on this issue in response to a letter from the Court. The Minister drew attention to the Tribunal having said that the matter had been '... determined on the evidence available' arguing that it thus had assessed the totality of the evidence. The Minister pointed to the reference in the application for review (see [5] above) in which the appellant 'cavilled' with the delegate's reasons, and, so the submission ran, thus incorporated the appellant's letter of 22 June 2003 to the delegate. 58 The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. Gray J held that information in the applicant's passport given for the purposes of the original application for a protection visa to which the applicant's counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]). But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]). Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]). 59 His Honour's reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error. Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court's discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111] , [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal. 60 A conclusion of fabrication and elaboration of claims is substantively different from a finding that the Tribunal was not satisfied as to the claims. It is one thing for a body, such as the Tribunal, where the question for its decision, as here (see s 65(1) of the Act), is whether a person has satisfied it, to reach a decision on the material before it, that it is not so satisfied (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277). And in reaching such a conclusion, the body can weigh the material properly before it in accordance with its statutory functions ( Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22 ; (1997) 191 CLR 559 at 573: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 281-282). In such a case, the decision may not necessarily be invalid if, as here, the Tribunal considered other material together with what the appellant had given it and, without complying with s 424A, was still not satisfied that he had made out his claim. This is because the reason why it was not so satisfied would be and would remain that what the appellant had 'given' it was insufficient. The extra material would not be a reason or a part of the reason for that state of mind since it did not affect it. 61 But, it is another thing for such a body to use material not properly before it in coming to a positive conclusion of fabrication or elaboration. Lesser weight is not the equivalent of rejection. 63 In SZBUS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1233 at [18] , [20] Allsop J held that a conclusion by the Tribunal of fabrication of claims, based in part on information outside the exception in s 424A(3)(b) provided by an applicant for review with his initial claim for a visa, was important and formed part of the reason for the decision. In particular, whether in the light of the previous unwillingness of the appellant to attend the Tribunal hearing in the face of a letter making plain that unless he came, in all likelihood, he would not be granted a visa, any different result would have obtained had a somewhat different letter been sent, identifying with a little more specificity (reflecting the findings in the above mentioned paragraph) why the appellant would not be granted a visa unless he gave further assistance. Here, the Tribunal came to a conclusion that the appellant had fabricated and elaborated claims. That was based on all the information which he had provided. It included what had been given to the delegate at an earlier stage and was not limited solely to that given for the purpose of the application for review. Contrary to the obligation under s 424A(1) the appellant was not given an opportunity to comment on information in, or the adequacy or completeness of, what he had put forward on the earlier occasion or its impact on the present application. Rather, his Honour observed, that was but one way in which information could be part of the reason for affirming a decision under review within the meaning of s 424A(1)(a). If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b). I do not see Finn J and Stone J in VAF in [24(iii)] of their reasons as requiring a formalistic analysis of information such as prior statements depending upon whether its or their relevance is from the text or from the absence of text. Where there are things such as a prior statement or a visa application form, the information for the purposes of s 424A will be that a document in that form was provided. That information may have relevance to the Tribunal for all sorts of reasons. Such relevance is not limited to whether the information leads to a positive factual finding based on its terms. It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant. A later provision of such a material matter could be capable of being characterized as a recent invention calculated to enhance the claim rather than as a genuine supplementation of the original material (see e.g. the analysis of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [177] - [180] ). Hence in such a situation, the relevance to the review of the 'omission' may be its bearing on the likelihood that each of the applicant's initial claim, and the later addition, would be accepted as reliable or as satisfying the Tribunal, as the decision maker, for the purposes of s 65(1) of the Act. 71 A process of reasoning which uses an 'omission' in the way described above is both common in every day life and, provided the facts support its use, unexceptionable. But, often times it will proceed upon the unstated premise that the initial claim gave, or could be expected to give, a full account of all the material facts which an applicant had available to give. That is, where such a premise is present, the initial claim will have included a representation, by implication or inference, that all of the bases which the applicant knew of had been put forward then and there by him or her. After all, the only person or the best person to tell the applicant's whole story in support of his or her claim, is ordinarily that applicant. And, in such a case it will be that latter representation which, in my opinion, is 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision which is under review' within the meaning of s 424A(1)(a). 73 The law dealing with representations, as well as the law concerning defamatory meanings or imputations, looks at the overall effect of the words and conduct of a representor or publisher and assesses whether, in the context in which the communication was made, a particular piece of information --- a representation or imputation --- was conveyed by it to an ordinary reasonable person in the position of a recipient of the communication. 74 So, in RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 166, 172 a Full Court of this Court held that where an expert insurance broker published its opinion on a rival insurer's policy wording there was '... implicit in the expression of opinion a statement of fact, namely [the broker] knew of facts which justified the opinion' (41 FCR at 172 per Beaumont and Spender JJ). In a case where the facts are equally well known to both parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the condition of the man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion . And everybody knows that sometimes half truth is no better than a downright falsehood. Now, in dealing with that question, again I say I protest against being called on only to look at some specific allegation in it; I think one is entitled to look at the whole document and see what it means taken together . Now, if you look at the whole document taken together, knowing what we now know and what the jury had before them, I suppose nobody can doubt that this was a fraudulent conspiracy .... It is said there is no specific allegation of fact which is proved to be false. Again I protest, as I have said, against that being the true test. I should say, taking the whole thing together, was there false representation? I do not care by what means it is conveyed --- by what trick or device or ambiguous language: all those are expedients by which fraudulent people seem to think they can escape from the real substance of the transaction. If by a number of statements you intentionally give a false impression and induce a person to act upon it, it is not the less false although if one takes each statement by itself there may be a difficulty in shewing that any specific statement is untrue. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader. And because of that, what is sought to be relied on as an 'omission' is properly capable of being characterised as information in the initial claim, being a representation of the, in effect, completeness and fullness of the material put forward. 79 Of course there may be cases, because of what is said or not said, where a different conclusion will be appropriate. For these reasons, I am of opinion that the reasoning of Allsop J in the authorities above is the appropriate way to analyse the Tribunal's use of the initial claim of the appellant in this matter. The earlier account given by the appellant was information which the Tribunal had before it, defective or not. The Tribunal regarded, as part of the reason for its rejection of the appellant's case, the totality of the appellant's explanation of his sur place application. 80 Section 430 of the Act requires the Tribunal, in making a decision on a review, to set out 'the reasons for the decision' (see esp s. 430(1)(b)). As McHugh, Gummow and Hayne JJ said in Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 346 [69] that provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. There is no such inadequacy to be found in the reasons of the Tribunal in the instant case. Rather, the reasons reveal --- as the Act required --- what the reasons were and the matters which the Tribunal considered were material. 82 The Minister submitted that the proper characterization of the Tribunal's reasons concerning the omissions in the appellant's initial claim was that this was simply an assessment or subjective appraisal of the information provided by the appellant. The Minister contended that the finding, based on what it said was the appellant's 'vague and generalized evidence in support of his claim' (at [30] of its decision: see [53] above), that his sur place claim was to elaborate on his claims based in China, to provide for himself the profile of and to enhance his claim to be a refugee, was mere assessment or appraisal which did not use any 'information' so as to enliven an obligation to provide particulars under s 424A. 83 But, in order to assess the appellant's 'general information' and 'vague and general evidence', the Tribunal had to have that evidence before it in accordance with the regime of procedural fairness for which s 424A provides. And, in stating its ultimate conclusion that it was not satisfied that the appellant was a person to whom Australia owed protection obligations the Tribunal said (at [32]) that it had '... considered the evidence as a whole'. The flaw in the Minister's argument is that the Tribunal made its assessment of all the information and evidence sourced to the appellant in the material before it, which included information he had earlier provided to the delegate but which he had not expressly given to the Tribunal for the purpose of his application pursuant to s 424(3)(b). 84 Applying the principles set out above, I am of opinion that the reasoning of the Tribunal reveals that it did regard as material the whole of the evidence and information before it and took it into account as the reason, or as part of the reason, for rejecting the application for review. It follows that because no particulars were provided to the appellant pursuant to s 424A(1) in relation to the information in his initial claim, namely that it contained or conveyed an implication or inference that it was a complete account of his claim, the Tribunal committed a jurisdictional error. They remember the words of M. Portalis, one of Napoleon's commissioners, who said "We have guarded against the dangerous ambition of wishing to regulate and to foresee everything ... A new question springs up. Then how is it to be decided? To this question it is replied that the office of the law is to fix by enlarged rules the general maxims of right and wrong, to establish firm principles fruitful in consequences, and not to descend to the detail of all questions which may arise upon each particular topic. " (Quoted by Halsbury LC in Halsbury's Laws of England, Introduction, p. ccxi. The application of the fair procedure identified by the Parliament may have caused the appellant to form a different view as to giving evidence and possibly providing an explanation which did satisfy the Tribunal compared to the course he might be thought, inadvisably, as found by the judge below, to have taken at the suggestion, of his migration agent. 87 For these reasons, I am of opinion that the appeal must be allowed. The Tribunal did not exercise its jurisdiction in accordance with the Act. The appellant is entitled to orders quashing the decision and remitting the matter to the Tribunal (see Re Macks; Ex parte Saint [2000] HCA 62 ; (2000) 204 CLR 158 at p 287; Attorney-General (Q) v Australian Industrial Relations Commission [2002] HCA 42 ; (2002) 213 CLR 485 at 503[43]). I certify that the preceding eighty seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

application of s 424a(1) of the migration act 1958 (cth) where applicant made references in application for review by refugee review tribunal to material provided to department in visa application meaning of 'information' under s 424a(1) and s 424a(3)(b) incorporation by reference in application for review and whether considered 'information' applicant gave for purposes of application held objective test to be applied where tribunal made positive finding of elaboration treatment of omissions in evidence by review tribunal whether considered information relevant to s 424a(1)(b) of the migration act 1958 (cth) appeal allowed ' information ... that the applicant gave for the purposes of the application', information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review', 'application', 'omission' migration law words and phrases

The remaining issue is that of costs in relation to the consequent vacation of the hearing date. In my reasons for decision delivered on 7 September 2009, the circumstances in which the hearing date came to be vacated by reason of the respondents' application for leave to amend their defence are identified. I do not propose to repeat those circumstances. Insofar as relevant, I incorporate them into the reasons I now give. In short, the applicant says that the respondent should pay the applicant's costs thrown away by reason of the vacation of the hearing date on an indemnity basis. The applicant's submissions in support of this proposition are straightforward. The applicant says it follows from these matters that in accordance with the usual course, the applicant should have the benefit of its costs thrown away, occasioned by the vacation of the hearing date as a consequence of the respondents' late application to amend. In addition, the applicant seeks indemnity costs on the basis of the circumstances which led to the late application to amend. The respondents' position is more complex. The respondents say that there are two possible costs orders which would properly reflect the circumstances of the case, depending upon the facts as found. The first is an order that each party bear its own costs of the vacation, but that the applicant indemnify the respondents in respect of one half of the costs which they were ordered to pay in relation to the cross-defendant, namely, the professional indemnity insurer. This order is supported by reason of some fairly brief submissions to the effect that the reason for the late amendment can be sheeted home to the applicant as a result of its resistance to the subpoena served on FirstMac on or about 11 May 2009. The respondents say that had FirstMac and subsequently the applicant not resisted production of documents under the subpoena (and in this regard, I should note that FirstMac's rights are subrogated to those of the applicant) then the documents under the subpoena could have been produced eight weeks before 23 July 2009. According to the respondents, this would have given ample time to the parties to consider their respective positions. The consequence would then have been that although the hearing date may have still needed to be vacated, any costs thrown away by that vacation would have been possibly avoided altogether. The alternative position of the respondents is that the applicant should pay the respondents' costs thrown away by reason of the vacation of the hearing dates, albeit on the usual, and not an indemnity, basis. This submission depends on the drawing of inferences from certain documents and circumstances. The inference that the respondents seek to draw is that from at least about May 2009 onwards (that is, the time of the service of the subpoena), the actions of the applicant and FirstMac in resisting the subpoena should be understood as a consequence of the fact that the applicant was aware that the contents of the documents to be produced under the subpoena had the potential to open a line of inquiry about the bona-fides of the borrowers. This has in fact resulted with the consequence that the applicant resisted the subpoena at its own risk as to the consequences of late amendment. The respondents say that this inference can be drawn by reviewing documents which disclose that neither the applicant nor FirstMac has attempted to enforce the loan agreements or the personal covenants for repayment in respect of the properties the subject of the proceedings. Instead, FirstMac has simply taken whatever measures were necessary to gain possession of each of the properties, and then sold them as mortgagee in possession. This is so in circumstances where, for example, at least one of the nominated borrowers, Monica Tong, is still resident at an address known to the parties, with there being no suggestion that she would not be a worthwhile commercial target for enforcement of her apparent contractual obligations of repayment under the relevant loan. The respondents say that when these circumstances are combined with the fact that the applicant has called no evidence about matters within its control and knowledge, given the subrogation of FirstMac's rights to the applicant, the inference should be drawn that the applicant, in effect, is conscious of problems in proceeding with any claim against the borrowers, and thereby, it is said, resisted the subpoena with those matters in mind. Finally, the respondents say there is no basis for the applicant's claim for indemnity costs. Indemnity costs are not the usual order. They are unusual in sense that some special or exceptional circumstance, usually having regard to some particular default in conduct on the part of the recipient of such an order, is required. In terms of these issues in dispute, it seems to me that the respondents' difficulties are twofold. First, I accept the submission by Mr Newton, counsel for the applicant, that the time issues in relation to the subpoena only became critical because of a long delay by the respondents in making a decision to issue a subpoena to the lender. That subpoena could have been issued at any time in the proceedings, and as the solicitor for the respondents' own correspondence to FirstMac makes plain, seeks production of documents clearly relevant to the issues in dispute between the parties. It therefore is not a reasonable characterisation of the facts to say that the applicant's or FirstMac's actions to resist the subpoena caused the late application to amend. The prime cause is the timing of the issue of the subpoena. The subpoena was in relatively broad terms, unlimited as to date, but be that as it may, there is no basis to infer that the applicant was doing anything other than acting in accordance with its rights to challenge the validity of the subpoena on the grounds that it did. The fact is it was ultimately unsuccessful. In any event, I have considerable difficulty in accepting what seems to me to be a fairly high level of speculation that if the documents had been produced earlier, then everything could have been done so as to keep the hearing date in place (which seems highly unlikely) or that all or most of the costs associated with a vacation of the hearing date could have been avoided. I do not draw either inference. As to the other aspects of the respondents' submissions, again I accept Mr Newton's response that based on the material before me, there is simply a lack of foundation for the drawing of any inference against the applicant that somehow it decided to resist the subpoena for an improper purpose in effect to prevent the respondents from obtaining access to otherwise relevant documents, so as to avoid a line of inquiry potentially relevant to the respondents' defence. The documents do not enable that inference to be drawn, and they do not enable the reliance on the reasoning in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. There is simply an absence of evidence from which such an inference about what is a relatively serious allegation would be drawn. In those circumstances, the respondents' submissions do not persuade me that the usual order as to costs is inappropriate. However, I am persuaded by the respondents' submissions that there is no basis in the circumstances of this matter, as explained in my reasons delivered on 7 September, for an order for indemnity costs. It seems to me that this matter, in terms of the vacation of the hearing date, is in the usual run of things. There has been no conduct by the respondents which would warrant liability in terms of costs under an indemnity costs order. Rather, consistent with the ordinary principle, the applicant should be compensated for the fact that it may have suffered costs thrown away by reason of the respondents' late application to amend the defence. I should also address the remaining issue of the claim, that the applicant indemnify the respondents in respect of one half of the costs of the cross-defendant. In relation to that issue, I accept Mr Newton's submission that the applicant is not a party to the cross-claim, it has not made any claim against the cross-defendant, and in the circumstances which I have already referred to, there is no reason why the applicant should give any indemnity to the respondents in terms of the respondents' liability for costs to the cross-defendant. Accordingly, I make the usual order as to costs, namely, the respondents pay the applicant's costs thrown away by reason of the vacation of the hearing dates fixed for 7-11 and 17 September 2009, as agreed or taxed. Those costs may be agreed or taxed forthwith. I should also note that, following the delivery of these oral reasons, counsel for the respondents, Mr Parsons, clarified that no submission was being made to the effect that the applicant's resistance to the subpoena was for an improper purpose. That clarification is acknowledged. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

costs thrown away by reason of amendment of defence and consequent vacation of hearing date where amendment to defence caused by issuance of a subpoena circumstances of issuance of subpoena and effect of those circumstances on late amendment to the defence resulting in the vacation of the hearing date whether indemnity costs order warranted. costs

Prior to that date he had a multiplicity of proceedings in this Court. His present amended application, in form at least, relates to decisions allegedly taken by the three respondents in relation to some number of the proceedings in which he was unsuccessful. It has been brought, nominally as will be seen, under the Administrative Decisions (Judicial Review) Act 1976 (Cth). All of the respondents claim that the advice of the 3 rd respondent is clear that the applicant has no standing in all actions now in High Court and/or as proposed there to fall within s 60(4) of the Bankruptcy Act 1966 . Insofar as it relates to the third respondent, the Australian Government Solicitor, the proceedings has been discontinued by the Official Trustee. The action against the third respondent was in any event incompetent. The first respondent, a Deputy Registrar of the High Court of Australia, has agreed to abide by any order of the Court save as to costs. As I understand Mr Rana's application against the Registrar it is without foundation once its essence is appreciated. The Official Trustee having filed a notice of discontinuance in an application in the High Court in A20 of 2008 for an order to show cause against a judge of this Court, the Registrar has taken no further steps in that matter. Unless and until the Official Trustee's decision to file that notice is declared invalid, the Registrar was entitled to act upon it. In any event, any decisions taken by the Registrar in relation to the acceptance or otherwise of material for filing in the High Court, even where potentially amenable to review under the AD(JR) Act; see Tait v Harris [2003] FCA 446 ; are not ones in relation to which I should make any determination. Such matters, which involve the conduct of the High Court's own officers in the discharge of their duties, are, in my view, ones for that Court itself properly to determine. The real respondent in this matter is the Official Trustee and Mr Rana's complaints are in relation to decisions allegedly taken by the Trustee in relation to proceedings which Mr Rana has prosecuted and lost in this Court (whether at first instance or on appeal). Because the application relates to decisions taken by the Trustee in that capacity, the application has been dealt with as well as if it were made under s 178 of the Bankruptcy Act 1966 (Cth). I should make several additional comments by way of preface concerning this proceeding. First, to the extent that Mr Rana seeks curial relief in respect of actions which have not yet occurred or decisions which have not been taken, I obviously will not entertain those matters. It is not my function to provide what will in essence be advisory opinions or answers to what might well be hypothetical issues. Secondly, the material that Mr Rana has put on in support of his application is in some degree impenetrable. I have attempted to reduce his complaints to what I consider could constitute justiciable issues. Some number of the Federal Court decisions referred to in his amended application were heard and disposed of prior to Mr Rana's bankruptcy. In relation to others, the appellate processes had not by then been exhausted. This is so, notwithstanding that it involves personal inconvenience to the bankrupt: see Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 119. Indeed, it is so notwithstanding the fact that it deprives the bankrupt of important civil rights which he or she would otherwise normally enjoy. It is of the essence of bankruptcy, as provided for by the Act, that property which belongs to the bankrupt, including choses in action (other than those which are specifically exempted) are vested upon bankruptcy in the bankrupt's trustee. The allegation is for the most part without foundation, although some of the decisions have been ones in which the Trustee has decided, favourably to Mr Rana, that the actions in question fell within the "personal injury or wrong" exception of s 60(4) of the Bankruptcy Act . For ease in exposition I will use the Court numbering of the various proceedings that are said to be presently relevant. I will deal first with the Federal Court matters and then the two High Court proceedings. The application was refused by Mansfield J on 20 October 2008. The Trustee was not a party to the proceeding. It came to the view that s 60(4) of the Act applied to the action as it involved predominantly issues concerning a claim by Mr Rana for personal injuries compensation. Mr Rana was advised of this view by letter dated 10 December 2008. Mr Rana could not claim to be "a person aggrieved" by such a decision of the Trustee for AD(JR) Act purposes. The evidence put on on behalf of the Trustee, which I accept, is that it made no decision, act or omission detrimental to Mr Rana in SAD 48 of 2008. I find Mr Rana has no reasonable ground for impugning the Trustee's decision under the AD(JR) Act or s 178 of the Bankruptcy Act. An appeal from that decision to the Full Court of this Court was dismissed on 21 November 2008. The Trustee was not a party to those proceedings and again took the view that the action was excepted by s 60(4) although it did not communicate this to Mr Rana. No application for special leave was made. My conclusion in relation to this matter is the same as in relation to SAD 48 of 2008 and for the same reasons. Mr Rana has no reasonable or available ground for impugning the Trustee's decision under the AD(JR) Act or s 178 of the Bankruptcy Act. The Trustee wrote to the court on 29 August 2008 notifying its decision to elect to discontinue the appeal. Nonetheless, the matter properly was heard: Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 592 at [11] ; and the appeal was dismissed on 20 October 2008. An application was made to the High Court for special leave. As will be seen below that application has been dismissed. There is no decision of the Trustee in relation to the appeal to the Federal Court that could now found proceedings under the AD(JR) Act or s 178 of the Bankruptcy Act. It was dismissed on 29 April 2009. The Official Trustee does not appear, on the evidence before me, to have made any decision after the decision in SAD 124 of 2008 which could now be the subject of review in this matter. On 28 November 2008 the Trustee executed a notice of discontinuance in relation to this application. An amended version of it was filed on 23 December 2008. The Trustee was of the view that an application for relief under s 75(v) of the Constitution vested in it pursuant to s 58 of the Bankruptcy Act as it did not comprise such an action for personal injury or wrong done to Mr Rana as was contemplated by s 116(2)(g) of the Act. The evidence is that at no time did Mr Rana seek the Trustee's consent to institute or maintain the action which was commenced after he had become a bankrupt. The substantive proceeding (SAD 12 of 2008) which gave rise to the decision in SAD 47 of 2008 to put the matter shortly, related to the preparation and communication of a psychiatric report in circumstances which allegedly gave rise to breaches of contract, breaches of confidence, negligence, defamation and contravention of s 52 of the Trade Practices Act 1974 (Cth) by one or other of the five respondents. They were the University of Adelaide, the Repatriation Commission, the University of South Australia, the Australian Government Solicitor and the Chief of Army. Justice Lander gave summary judgment for all five respondents under s 31A of the Federal Court of Australia Act on 17 March (1 st , 2 nd , 4 th and 5 th respondents) and (3 rd respondent) 7 April 2008. He could not have, in my opinion, amended his statement of claim so as to cure those defects: Rana v University of Adelaide [2008] FCA 940 at [14] . I would interpolate that, having regard to the complaints made by Mr Rana against the various respondents, the proceeding before Lander J was, manifestly, an abuse of process: it was "foredoomed to fail": Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393. The preliminary point to be noted about A 20 of 2008 is that the action was commenced after Mr Rana's bankruptcy. Importantly it thus falls outside of the provisions of s 60(2) and (4) of the Bankruptcy Act . This requires emphasis. In Daemar a proceedings by way of summons claiming orders in the nature of prerogative relief (together with damages and declaratory relief) was held by the Court of Appeal of New South Wales to be an "action" for the purposes of s 60(2) of the Bankruptcy Act . It was, in the circumstances, further held to be an action in which the plaintiff sought relief affecting his property. It was not one in respect of any personal injury or wrong done to the bankrupt, Mr Daemar, for the purposes of the s 60(4) exemption from the s 60(2) stay. I am for present purposes obliged to accept the Court's ruling in relation to its characterisation of the proceedings in that case as "an action": Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at [135] . The Bankruptcy Act does not make express provision for actions instituted by a bankrupt after his or her bankruptcy in respect of a cause of action which either predates or post-dates the bankruptcy. The effect of the bankruptcy on that cause of action is said to be governed by s 58 and s 116 of the Act, these being the provisions relating to the vesting of the bankrupt's property in the trustee in bankruptcy and to the property available for distribution among the creditors: see 3 The Laws of Australia, "Bankruptcy" at [3.8.940]. If such be the case, the issue which arises is not, as in Daemar , with the question whether Mr Rana's show cause proceedings is an "action". Rather, it is with whether it is "property" passing to the Trustee under s 58(1) and, if so, whether it is divisible amongst his creditors under s 116(1) or exempted therefrom by s 116(2)(g) (ie is it a "right ... to recover damages or compensation ... for personal injury or wrong done to [him]"). In Daemar Kirby P acknowledged the possibility of "a serious disharmony" between s 60(2) and s 58(1) and their respective operations upon claims brought, respectively, before and after bankruptcy supervened: at 53 and 55. In the case there before the Court, the claim (as noted) was instituted before the bankruptcy and thus fell clearly within s 60(2). Especially because the Parliament has specifically adumbrated the exceptions to the operation of the statutory stay, in the terms of s 60(4), this indicates that it attended to the way in which prior civil action should go forward at the option only of the trustee, or be stayed by the statute. Such vesting necessarily presupposes that all such actions were the bankrupt's property. In Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178 , the New South Wales Court of Appeal revisited its earlier orders. Mr Daemar had by now been discharged from bankruptcy and sought the vacation or variation of the stay which the Court had held was in place by force of s 60(2) . The orders that had been made against Mr Daemar in earlier litigation and which were the subject of the prerogative relief sought, were ones which in part affected the rights of a third party. A pecuniary award had been made in that party's favour and Mr Daemar was seeking to impugn that award in his action for prerogative relief. In approaching the matter, the Court first addressed the question of the status of an action vested in the trustee after the discharge of a bankrupt. This brought into focus the position of the third party. President Kirby (at 185) accepted the proposition that property vested in a trustee at the time of sequestration remains vested in that trustee, even after the discharge of the bankrupt. The trustee declines to bring proceedings, as trustee, although by the authority of Bennett v Gamgee, Re Summerhayes and Kwok he might have done so during the bankruptcy. By the authority of Pegler v Dale he still remains vested with the chose in action. (Emphasis added. Mr Daemar had, in Daemar [No 2] , sought to limit the relief claimed to the prerogative orders only. It will be remembered that the claimant has sought to do this by proposing that the Court confine his relief to that prerogative in nature and even to the point of removing the second and third opponents from the record so that no relief would be sought against them. It could scarcely have done so. As was there pointed out, such proceedings may be commenced by any person. They need not be brought before the Court by the person(s) most directly concerned, although a lack of connection will be a consideration taken into account in the provision of relief: R v Justices of Surrey (1870) LR 5 QB 466 ; Farquharson v Morgan [1894] 1 QB 552 at 556: see, however, M Aronson and N Franklin, Review of Administrative Action (1987) Law Book Co at 441f and cases there cited. The basic function of the court, in affording relief prerogative in nature, is not to provide a private litigant with a personal benefit (although that may be an indirect consequence of the order) but to uphold the law and to require subordinate office-holders to remain within the law and to act fairly in their observance of their lawful functions: see R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 161 at 205. There is no time limit for the commencement of proceedings for relief prerogative in nature. Delay will be a consideration, taken into account by the Court, when determining whether to provide the relief. That is why it is conventionally described as discretionary in character. But, unlike an appeal, there is no fixed time for the commencement of such proceedings. The claimant, who is under no relevant disability, being now discharged from bankruptcy, could therefore commence proceedings forthwith against the Industrial Commission seeking relief prerogative in nature against it. He could do so by fresh process : cf Want v Moss and Wife (1890) 6 WN(NSW) 102 at 103. (Emphasis added. This was because it would still affect impermissibly the third party's award against Mr Daemar. It is, with respect, difficult to extract a simple explanation from the reasoning of the Daemar cases as to the force and effect of the Bankruptcy Act on an "action" for relief in the nature of prerogative relief. If, as I have suggested above, s 60(2) is premised upon the action in question being the bankrupt's property and thus having vested in the trustee, then, for the reasons given by Kirby P in Daemar [No 2] , I would with respect have some difficulty in characterising an "action" that was simply for relief in the nature of a constitutional writ, as being the personal property of a bankrupt: and cf the definition of "property" in s 5(1) of the Act. My difficulty is compounded by Kirby P's description of a claim for prerogative relief as not belonging to the trustee "as a private chose in action even after the claimant's discharge from bankruptcy". If this suggests it changes its proprietary character on discharge it is difficult to see why this should be so. Perhaps the better explanation of the two decisions is that (i) s 60(2) encompasses all of the bankrupt's actions (for prerogative relief or otherwise) save for those exempted by s 60(4), but that the bankrupt has the clear statutory right under s 178(1) to challenge the trustee's election not to prosecute or to discontinue such an action; and (ii) after the bankrupt is discharged, he or she is entitled to initiate new proceedings for prerogative relief but that the fate of those proceedings may be influenced by its affects upon the continuing administration of the bankrupt's estate and, in particular, by whether the prerogative relief sought can properly be characterised as being, in substance, in respect of the property of the bankrupt. The present, as I have noted, is not a s 60 case, and neither is Mr Rana an undischarged bankrupt. Nonetheless I consider I am obliged to follow the reasoning of the Daemar cases insofar as it has a direct bearing upon the matter before me: cf Farar Constructions . Whatever my own concerns, they are decisions of long standing which have been considered and applied without demur including in decisions of this Court: see eg Madden v Madden [1995] FCA 297 ; Fitzpatrick v Keelty [2008] FCA 35. For present purposes, the first Daemar decision would seem to be authority for at least the proposition that an action for prerogative relief in relation to orders made in a proceeding in which (i) a cause of action is asserted by or against the applicant and (ii) the applicant is unsuccessful in prosecuting or resisting that claim, is to be characterised as an action to which s 60 applies if it is instituted prior to the applicant's bankruptcy. In other words the action for prerogative relief takes its character, in part at least, from the character of the rights sought to be vindicated in the proceedings in which the orders were made which have become the subject of the prerogative relief sought. Hence there was the concern in the first Daemar decision with whether the "action" in that case affected Daemar's "property" or his "personal interests" only for s 60(2) and (4) purposes. Though Kirby P adverted to the potential for "serious disharmony" between proceedings instituted prior to, and those commenced subsequent to, bankruptcy if s 58(1) and s 60(2) had differing compasses, I do not consider that such in fact is the legislative intention disclosed by these two provisions in the scheme of the Act at least insofar as it applies to an action having the character I have described in the preceding paragraph. My view in this is reinforced by what I consider to be the clear legislative intent to exempt from control by the trustee, an action by the bankrupt which is in respect of any personal injury or wrong done to the bankrupt and this irrespective of when the action was instituted: cf s 60(4) and s 116(2)(g)(i). I conclude in consequence that such an action for prerogative relief, if it is not exempted by s 116(2)(g)(i), is vested in the trustee in bankruptcy and as such can be prosecuted, defended, compromised or discontinued by the trustee in the exercise of his or her powers under s 134(e), (j) and (o) of the Act. Mr Rana's obvious motivation in instituting the show cause action was as a step along the way to establishing and vindicating the right he alleges he has to recover damages for a personal injury or wrong to him. This is clear on the face of the application which joined all of the respondents in the proceeding before Lander J. Moreover the grounds on which relief was sought were directed at those respondents. It is not for me in this proceeding to consider whether he had standing to institute the action. That is a matter for the High Court. My present concern, rather, is with whether it can properly be said he is able to seek succour in s 116(2)(g) and hence challenge the trustee's discontinuance of the proceeding. I do not consider that he can do so. I can state my reasons shortly. First, though the various causes of action are widely cast in the Statement of Claim, at their centre are claims for breaches of contracts against some of the respondents and breaches of confidence, with satellite claims for negligence, defamation (to which I will refer separately below) and contraventions of s 52 of the Trade Practices Act against one or other of them. The contracts in question were a series of settlement agreements with several of the respondents in respect of outstanding litigations against them. The damages said to flow from all of these various wrongs, as best one can understand it, appears to be constituted primarily by a claim for $4,000,000 for "the loss and damage occurring to the applicant's compensation and benefits claims against the Commonwealth ... and its various agencies". It is to say the least difficult to see how such damages could be said to result from the wrong alleged. They clearly are not relevantly damages for a "personal injury or wrong done to [him]": cf s 60(4) and s 116(2)(g). Rather, they are presumably referable to entitlements which he alleges he has against the Commonwealth and its agencies but of which he has been deprived. To the extent that these make up the major part of the damages he claims, then the causes of action to which they relate have passed to the Trustee to the exclusion of Mr Rana. As to Mr Rana's alleged cause of action for damages against the University of Adelaide for defamation for which the University was alleged to be vicariously liable, the claim, while hopelessly misconceived, was in form for a personal injury or wrong done to him: s 116(2)(g). As such, it could be said not to be of a type that would vest in the Trustee. Nonetheless, it failed for the same reason as did all of the claims made against the University. The actions giving rise to those claims were done by a person acting in his private capacity and not as an employee of the University. In this sense this claim was integrally interconnected in the proceedings with the other non-personal claims made in SAD 12 of 2008 which made up the real substance of that litigation. In these circumstances I regard it as unnecessary here to enter upon any consideration of apportionment of Mr Rana's claims against the University: cf Faulkner v Bluett [1981] FCA 5 ; (1981) 52 FLR 115 at 115; Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 at [47] and [51] for the purposes of A20 of 2008. Apportionment was not raised before me in any event. It was for the Trustee, not Mr Rana, to determine whether the show cause application would be prosecuted. Distinctly, I am not satisfied that Mr Rana is seeking to vindicate or establish a "personal wrong or injury" for s 116(2)(g) purposes. All of the claims he advanced (in SAD 12 of 2008) against all five respondents were struck out as abuses of process. No legally intelligible claims were disclosed against four of the respondents; the remaining claim against the University of South Australia was also struck out for the same reason, his Honour having found it was based on a document relied upon by Mr Rana which was "not authentic": Rana v University of Adelaide (No 2) at [7]. The proceedings before Lander J were doomed to failure. The imagined claims made did not give that degree of authenticity to the rights asserted such as would justify characterising them as rights to recover damages for personal injury or wrong to the bankrupt for s 116(2)(g) purposes. They are illusory rights. The final comment I should make is this. If I was not satisfied that, for whatever reason, the show cause action had not vested in the Trustee, I would not have declined to award Mr Rana relief on the grounds of futility. The present proceedings is quite unlike Daemar [No 2] . The High Court, not this Court, is seized of the show cause application. It is not for me to express a view on whether the High Court action is either competent or has any prospects of success. It is for that Court to do so. That decision as I have indicated was the only one which raised any issue of substance for the purposes either of the AD(JR) Act or s 178 of the Bankruptcy Act . I have already indicated why there are no grounds at all for providing relief against the Trustee in respect of his decisions (actual or alleged) concerning the other proceedings referred to in Mr Rana's application. Accordingly, I will give summary judgment in favour of the respondents and will order that the proceeding be dismissed against each respondent. I will also order the applicant pay the costs of each respondent. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Counsel for the First Respondent: The First Respondent did not appear. Counsel for the Second Respondent: G Gretsas Solicitor for the Second Respondent: Gretsas & Associates Counsel for the Third Respondent: The Third Respondent did not appear.

whether show cause proceedings in the high court vested in bankrupt applicant's trustee applicant challenging trustee's decision to issue notice of discontinuance in high court whether decision challenged in show cause proceeding related in part to a claim for damages for "personal injury or wrong" personal claim integrally interconnected with substantive non-personal claims unnecessary to consider apportionment summary dismissal federal court of australia act 1976 (cth) s 31a federal court rules o 20 r 5 application having no reasonable prospects of success high court seized of the matter bankruptcy practice and procedure

The first notice is an amended Notice of Objection to Competency filed by the first respondent on 24 October 2006, which amends the notice filed by the first respondent on 27 September 2006. The second Notice of Objection to Competency was filed by the third respondent on 6 October 2006. For convenience, I shall continue to refer to Mr Keelty, Ms Boast and the Department as 'respondents' notwithstanding that two of these parties are applicants to the notices; similarly it is convenient to refer to Mr Gant as 'the applicant' notwithstanding that he is the respondent to these notices. 2 Order 54 r 4 Federal Court Rules provides that a notice of objection to competency of an Application for an Order of Review must be filed within 14 days after service of the application. Both the notice of objection filed by the first respondent on 27 September 2006, and the notice of objection filed by the third respondent on 6 October 2006 were filed out of time. Mr Porter for the first respondent and Mr McLeod for the third respondent sought leave to rely on their respective notices of objection to competency. Leave was not opposed by Mr Asuzu for the applicant and I granted leave. 3 Mr Porter also sought leave in respect of the amended notice of objection to competency filed 24 October 2006. Again leave was not opposed by Mr Asuzu and I granted leave. The search warrant was issued on 17 September 2004 by the second respondent in respect of items relating to a mobile phone, and/or certain SIM cards of the applicant, which items related to the applicant. 6 The warrant authorised the search of a unit at the Gold Coast, and two motor vehicles. It was executed on 22 September 2004. The applicant was arrested with respect to six offences on that day. On 23 September 2004 the applicant was brought before the Magistrates Court at Brisbane and bench charge sheets were produced to the Court. I understand that the summary trial of the charges against the applicant commenced in the Magistrates Court in Brisbane on 10 July 2006. I also understand that the trial is part-heard, and that it is scheduled for further hearing on 22-24 January 2007. Order 54 r 2 provides that an Application for an Order of Review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act') is to be in the form prescribed in that rule. The application before me is in that form. It therefore follows that the applicant seeks an order of review within the scope of the ADJR Act. 10 Mr Asuzu on behalf of the applicant disclaimed reliance on the ADJR Act in relation to the application. In par 5 of his written submissions, he stated that s 9A ADJR Act does not apply 'as the applicant's case had not even named that Act or s 39B Judiciary Act 1903 (Cth) (' Judiciary Act ') as applicable legislation'. 11 However, in order for this Court to entertain the application of the applicant, it is necessary for the jurisdiction of the Court to be identified. 12 The general submissions of Counsel for the applicant in respect of this application have been singularly unhelpful to this Court and to the applicant's case. The Court however takes applications of this nature very seriously, and in the interests of justice I am prepared to treat the application as one made pursuant to the ADJR Act. The applicant has not sought review under the Judiciary Act . The ADJR Act is the only source of jurisdiction I can identify relevant to the application before me, and I shall proceed on this basis. The application seeks an order that all such warrants were invalid and illegal. 14 The documentation on the Court file indicates that a number of search warrants were issued for premises and property of the applicant on or about 22 September 2004. 15 However, despite the terms in which the application is framed, it is not automatically clear from the remainder of the file documentation whether it is in fact all search warrants for which review is being sought in this Court, or only the search warrant issued on 17 September 2004 and executed on 22 September 2004 by the second respondent. 16 The application proceeds on the basis that review is sought of the warrant executed by the second respondent in that she acted beyond power in executing the search warrant. Further, the grounds of the application refer to the justice of the peace acting in breach of her duty, in not giving the search warrants proper consideration and perverting the course of justice. 17 As is clear from correspondence attached to the applicant's affidavit sworn 24 August 2006, only one of the search warrants executed on the applicant's residence, vehicles and business premises was executed by the second respondent. Therefore in seeking to review the actions of the second respondent, the application can only be referring to one search warrant. It is also clear that the only search warrant attached to the applicant's affidavit sworn 24 August 2006, or indeed appearing anywhere in the documentation before this Court, is the search warrant executed by the second respondent on 22 September 2004. 18 Further, in submissions, both written and oral, it became clear that both parties were proceeding on the basis that this application did in fact only relate to the warrant issued by the second respondent. 19 In these circumstances it is clear that this application is for an order of review of the search warrant issued 17 September 2004 and executed 22 September 2004 by the second respondent. As such, in this judgment I shall deal only with that search warrant. 23 Further, a person who is aggrieved by conduct another has engaged in for the purpose of making a decision to which the ADJR Act applies may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the conduct: s 6(1). 27 It is appropriate to consider the grounds of objection separately. 32 These issues have not assisted the applicant's case before me. 33 Having said that, I note that the applicant seeks an order to review the decision of the first respondent to obtain a search warrant, essentially on the basis that the decision was made on the false pretence of a terrorism attack in Australia. The search warrant was stale, and hence invalid. 2. The search warrant's factual preconditions for its issue were not fulfilled, in particular that the relevant AFP officer lied on oath as to where the offences had been committed. 3. All of these categories require the relevant decision to be made 'in connection with' a particular act. 37 It is important to consider the meaning of these terms for the purposes of ascertaining whether the decision impugned in this case is a 'related criminal justice process decision'. 39 For the purpose of an analysis as to the application of s 9A ADJR Act to the decision of the first respondent, I shall assume for the moment that the decision of the first respondent to obtain a search warrant was a 'decision' within the meaning of s 3(1) (although I will consider this issue in more detail later in this judgment). Section 9A(4)(a) defines a related criminal justice process decision as including 'a decision in connection with the investigation, committal for trial or prosecution of the defendant' (s 9A(4)(a)(i)) and 'a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant' (s 9A(4)(a)(iii)). 41 In his written submissions, Mr Asuzu for the applicant in par 2 stated that the search warrant was obtained 'as a procedural step...in commencing action against the applicant'. The offences with which the applicant has been charged were described in par 1 of Mr Asuzu's written submissions. 42 The expression 'in connection with' is a commonly-used legislative expression. It has been the subject of extensive judicial comment. They do not necessarily require a causal relationship between the two things... They may be used to describe a relationship with a contemplated future event. The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase "having to do with" perhaps gives as good a suggestion of the meaning as could be had. 45 I shall consider below the issue of whether the decision of the first respondent was made 'in connection with' an act as required by s 9A(4)(a). Was the decision of the respondent to obtain a search warrant a 'related criminal justice process decision'? 2. Does the fact that the Application for an Order of Review of the decision of the first respondent to obtain a search warrant, as specified in the first paragraph of the application, mean that the application is an application 'in relation to' that related criminal justice process decision? 49 Earlier in this judgment I considered the meaning of 'decision' and 'in connection with' in the context of s 9A(4)(a). The differences between 'in connection with' and 'in relation to' are, as a general proposition, minimal (cf French J in Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303). Indeed, related criminal justice process decisions are defined by the fact that there is a 'connection' between a decision and some other event, such as the issue of a warrant. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. To the extent that the decision of the first respondent to obtain a search warrant was a decision to which the Act applied (and I shall consider this point shortly in my judgment) there appears no dispute that the search warrant relates to events the subject of charges the applicant is currently facing in the courts. In this respect, it would appear that the decision of the first respondent to obtain the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the first respondent to obtain the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The first respondent sought a search warrant to search the premises of the applicant; it appears that the applicant was charged with criminal offences on the basis of the evidentiary material obtained during the execution of the search warrant. The 'relationship' or 'connection' is stark. (I note that the fact that obtaining a search warrant and seizing material pursuant to it is conduct 'in connection with' an investigation was also the view of the Full Court in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 277. It therefore also follows that the application of Mr Gant is 'in relation to' a related criminal justice process decision for the purposes of s 9A. 52 In light of these principles, prima facie s 9A(1) applies and excludes the jurisdiction of the Federal Court to review the decision of the first respondent in relation to its decision to obtaining the search warrant which was issued by the second respondent. 53 However the applicant has submitted, inter alia , that the Court has discretion to determine whether search warrants are obtained with due process and that the Court also has discretion to determine whether the applicant's challenge to the process resulting in the search warrant was a delaying tactic or unmeritorious. In my view these submissions reflect a complete misunderstanding of s 9A ADJR Act and the policy behind it. Section 9A is framed in absolute terms. Where the conditions specified in s 9A(1) are satisfied --- as in my view, they are in the case before me --- the section states unequivocally that the Court has no jurisdiction to hear an application of the kind brought by the applicant. To express it more simply, there is no discretion in the Federal Court to review a decision to obtain a search warrant where the applicant is a defendant to a prosecution which relates to that decision before a Court, and the applicant after the commencement of the prosecution seeks review of that decision. 54 The background to the enactment of s 9A ADJR Act was explained by the Full Court of the Federal Court in Chief Executive Officer of Customs v Jiang [2001] FCA 145 ; [2001] 111 FCR 395. O'Loughlin, North and Weinberg JJ considered the history of judicial review of decisions made in the context of criminal prosecutions, including the second reading speech for the Bill introducing the legislation. • Section 9A ADJR Act (and ss 39(1B)-(1F) and s 39B(3) Judiciary Act ) were introduced to put a stop to the use of what the government regarded as unmeritorious delaying tactics commonly employed in the criminal justice process. The aim of these legislative provisions was to remove collateral access to federal administrative law procedures and remedies in the Federal Court where a prosecution for an offence against a law of the Commonwealth had commenced (at page 400). 55 Reference to the absolute exclusion of jurisdiction in these circumstances was made by Federal Attorney-General Darryl Williams in the second reading speech to the Jurisdiction of Courts Legislation Amendment Bill 2000, Sch 2 of which inserted s 9A ADJR Act and s 39B Judiciary Act . Nor will they be able to use that act to challenge other decisions in the criminal justice process after a prosecution or appeal has commenced. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on state and territory supreme courts. 57 Further, while it is clear that the mischief the legislation intended to address was unmeritorious delaying tactics in the criminal justice process caused by collateral access rights of defendants to federal administrative law procedures and remedies, the legislation is clear on its face. Section 9A contains no reference to, and nor should it be read in such a way as to require, an analysis of the motives of an applicant in bringing an Application for an Order of Review of a decision to obtain a search warrant. The motives of the applicant in seeking review of the related criminal justice process decisions are irrelevant. In applicable circumstances, such as those before me, the jurisdiction of the Federal Court to review an administrative decision is excluded. 59 The second respondent was the Justice of the Peace who issued the relevant search warrant. It is common ground that Ms Boast is a Queensland Justice of the Peace. 61 This issue can be dealt with swiftly. The search warrant in this matter was issued pursuant to s 3E Crimes Act . Contrary to the submissions of Mr Asuzu, it was not issued in accordance with the criminal laws of the State of Queensland. 62 The offences in respect of which the applicant has been charged are offences under the Crimes Act . The premises in respect of which the search warrant was issued were in Queensland, the search warrant was executed within seven days of issue. No submissions were made by the applicant which persuade me other than that the search warrant was issued by the second respondent in accordance with the Crimes Act . Conduct or decision? The application seeks an order of review of the 'conduct of the second respondent who issued a search warrant beyond her jurisdiction, without verification of the terrorism information and therefore had not been satisfied that an offence had been committed within Queensland'. I have already dealt with this issue --- in the context of the Crimes Act , a key question in the issue of a search warrant is the location of the premises. • A claim that the second respondent acted without jurisdiction and/or power by issuing a search warrant on wrong and insufficient grounds. • A claim that the second respondent perverted the course of justice by inserting the wrong and incorrect sequence of her registration number on the search warrant. • A claim that the second respondent perverted the course of justice by acting mechanically and/or merely rubber stamping the search warrant. • A claim that the second respondent did not give the relevant search warrant proper consideration. 64 However in my view, to the extent that the applicant seeks a review of the conduct of the second respondent, his application is misconceived. The grounds on which he seeks an order of review and the particulars are essentially reasons claimed by the applicant as to why and how the decision of the second respondent in issuing the search warrant was flawed. The 'conduct' of the second respondent impugned by the application was conduct in the course of, and contemporaneous with, making her decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice. To the extent that this is reviewable conduct (and in my view, that is dubious) this allegation is buried in a substantive claim that the second respondent 'perverted the course of justice' --- presumably in respect of the manner in which she issued the search warrant. Other than this possible issue, the claim of the applicant concerning the second respondent concerns her decision to issue the search warrant, not procedural issues relevant to the decision. 68 There is no doubt that a decision to issue a search warrant is a decision under an enactment --- in this case, the Crimes Act --- and accordingly reviewable under the ADJR Act: Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147 at 152-153, Salerno v National Crime Authority (1997) 75 FCR 133, Harts Australia Ltd v The Commissioner, Australian Federal Police [2001] FCA 175. In my view however, the application of the applicant concerning the decision of the second respondent to issue the search warrant is an application 'in relation to a related criminal justice process decision ' for the reasons I discussed earlier in the context of the first respondent. Accordingly, the jurisdiction of the Federal Court is excluded under s 9A ADJR Act in respect of the Application for an Order of Review of the decision of the second respondent to issue the warrant. 69 Secondly, even if there was conduct of the second respondent which was capable of being reviewed under s 6 ADJR Act, the courts approach with caution applications for an order of review in relation to conduct where the conduct has been superseded by a decision. In my view, if any review were to be undertaken by the Court it should be of that decision, however as already indicated the Court lacks jurisdiction to do so under s 9A ADJR Act. It is clear that the decision of the second respondent to issue the search warrant is a 'related criminal justice process decision', within the meaning of s 9A(4)(a)(i) or (iii), with respect to the offences for which the applicant is currently facing prosecution, in that the decision of the second respondent to issue the search warrant was 'in connection with' the investigation, or more obviously 'in connection with' the issue of a search warrant. The application of the applicant for an order of review of that decision is also clearly 'in relation to' that decision. 71 In any event, Mr Porter for the first respondent also submitted that even if the applicant articulates his complaint as being in respect of the 'conduct' of the second respondent in issuing the warrant, s 9A(1) is relevant because the section applies not just to an application to review criminal justice process decisions, but to an application 'in relation to' a criminal justice process decision. It is arguable that an application for an order of review of conduct in the context of which a criminal justice process decision has been made, is itself 'an application in relation to a criminal justice process decision'. • I note the particular wording of s 9A, namely that it excludes from the jurisdiction of the Court applications in relation to a related criminal justice process decision. This may be contrasted with, for example, the circumstances before Merkel J in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 where s 485 of the Migration Act 1958 (Cth) specifically provided that the Federal Court did 'not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subs 475(2)'. In that case Merkel J found that although the legislation excluded judicial review of decisions, it did not exclude the operation of s 6 ADJR Act to review conduct. In the case before me however s 9A excludes applications, in relation to decisions , which could include conduct. 72 It is not strictly necessary to decide this point because of the views I have taken about the claim of the applicant in relation to the decision of the second respondent, and the fact that it is not appropriate to review the conduct to which the applicant has referred because it has been superseded by a decision. However, to avoid uncertainty, I am of the view that s 9A operates to exclude an application for review of a person's conduct in the course of making a related criminal justice process decision. WAS THE FIRST RESPONDENT'S 'DECISION TO OBTAIN' A SEARCH WARRANT A REVIEWABLE DECISION FOR THE PURPOSES OF SECTION 5(1) ADJR ACT? There appears to be no doubt that a decision to issue a search warrant is a reviewable decision. • A decision to apply for a warrant may be reviewable under the ADJR Act, or if not under that legislation then under s 39B Judiciary Act . This was the view taken by Finkelstein J in Wilhelm v McKay [2005] FCA 792 at [7] (although the issue was specifically not decided by the Full Court in Jilani v Wilhelm [2005] FCAFC 269 ; [2005] 148 FCR 255, at 274). • Although this case did not consider an order of review, the Full Court was prepared to entertain an application with respect to 'obtaining' a search warrant and seizing documents pursuant to that search warrant in Health Insurance Commission v Freeman . 74 As I said earlier in this judgment, a 'decision' under the ADJR Act requires an element of finality, rather than acts preparatory to the making of a decision (Mason CJ in Bond at 336). A decision will only be "made... under an enactment" if both these criteria are met. That is, the decision does not itself confer, alter or otherwise affect legal rights or obligations --- hence the decision of the first respondent is not reviewable under the ADJR Act. 76 Unfortunately the Court has not had the benefit of submissions from the applicant in respect of this issue. In my view it is arguable as a general proposition that a decision to obtain a search warrant is a reviewable decision under the ADJR Act (or the Judiciary Act ). 77 Accordingly, to that extent it is unnecessary for me decide whether the decision is a reviewable decision or not. Section 11(1) ADJR Act requires that an application to the court for an order of review shall be lodged with the court during the period prescribed by s 11(3). 79 In my view, these submissions accurately summarise the position with respect to this application. 80 The applicant did not dispute that leave was necessary to hear his application, and at the hearing Mr Asuzu made an application for an extension of time for the application to be heard. At both the hearing and in his written submissions Mr Asuzu stated that the applicant had spent 16 days in prison. 81 In Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, Wilcox J articulated principles relevant to an application for an extension of time to make an application for an order of review under the ADJR Act. Although the section does not, in terms place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored... Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained... However, the mere absence of prejudice is not enough to justify the grant of an extension... In this context, public considerations often include... A delay which may result, if the application is successful, in the unsettling of other people... or of established practices... is likely to prove fatal to the application. Although the fact that the applicant was in prison for 16 days is an acceptable explanation for some delay in making an Application for an Order of Review, it is not an acceptable explanation for 22 months delay in making that application. No explanation has been provided by the applicant as to the length of the delay in making an Application for an Order of Review. 2. As I have already indicated in my judgment, a number of particulars in the application with respect to the second respondent are, in my view, simply wrong (for example, claims to the effect that the second respondent acted outside her powers in issuing a search warrant with respect to offences allegedly occurring outside Queensland), and accordingly the merits of the application in this respect do not support an extension of time. 3. Although it is awkward to say in the context of criminal proceedings that the Commonwealth would be 'prejudiced' by a grant of an extension of time in relation to this application, I note that criminal proceedings in the Magistrates Court at Brisbane in relation to the charges against the applicant are currently part-heard. As a matter of public policy, it would in my view be undesirable to allow process to continue in the Federal Court in relation to the circumstances involving the issue of a search warrant by the second respondent, to improperly interfere with those proceedings in the Magistrates Court. 4. The potential for an abuse of process to occur where an applicant seeks judicial intervention from different courts in relation to the same matter is, in my view, a factor to take into consideration in relation to whether to extend time. Mr Asuzu also submitted that notices to produce were served on, inter alia , the second respondent in relation to the application for the search warrant and the supporting affidavit, but no documents have been produced. 5. Finally, the applicant, both in his application and through his Counsel, has made strong submissions to the effect that his case involves individual liberty and freedom, and effective control of abuse of police powers. These are serious issues. However as I have already stated in my judgment, the jurisdiction of this Court to hear the applicant's application for order of review in relation to the relevant related criminal process decisions in this case is excluded by s 9A ADJR Act. In my opinion, this conclusion and the resultant lack of merit in the substantive case of the applicant strongly militates against any utility in extending time to make an application for order of review. 84 As I have already indicated in my judgment, the procedure to issue a search warrant by a Justice of the Peace rather than a Magistrate in respect of an out of State offence was a proper procedure under the Crimes Act . Accordingly, in my view this aspect of the application with respect to the third respondent is not competent. 86 The third respondent has submitted that proceedings against the Crown may be made under the title the 'State of Queensland': s 8 Crown Proceedings Act 1980 (Qld). I note that 'Department of Justice and Attorney-General' is not an entity known to law, and therefore cannot sue or be sued. 87 Notwithstanding this hurdle, in my view the claim of the applicant in respect of the third respondent is not competent in any event. No principle of law has been produced to the Court to the effect that the State of Queensland is in any way responsible for a decision of the second respondent (or other Queensland Justices of the Peace) issuing search warranties under the Crimes Act . No decision of the third respondent is identified for review, and in my view the 'conduct' of the third respondent impugned in the application is not 'conduct' which can in any way be the subject of an order of review under s 6 ADJR Act. Further, in my view for the reasons I have already stated it is not appropriate to grant an extension of time to the applicant for his application to be heard. 89 I have heard submissions from the parties in relation to costs. I am not persuaded that it is appropriate to make any order other than that costs should follow the event. The Federal Court of Australia has no jurisdiction to hear the Application for an Order of Review filed by the applicant on 24 August 2006 against the first, second and third respondents. 2. The application by the applicant for an extension of time for the Court to hear the Application for an Order of Review filed by the applicant on 24 August 2006 against first, second and third respondents is refused. 3. The applicant to pay the costs of the first respondent and the State of Queensland, to be taxed if not otherwise agreed.

search warrants application for an order to review brought under administrative decisions (judicial review) act 1977 (cth) (adjr act) for review of decision to obtain a search warrant issued under s 85ze crimes act 1914 (cth) objection to competency application of s 9a adjr act whether s 9a adjr act excludes the review of this decision from the jurisdiction of the federal court whether application is in relation to a criminal justice proceeding decision related to an offence already before a court whether decision to obtain a search warrant is a related criminal justice process decision whether decision to seek to obtain a search warrant is a decision made under an enactment application out of time whether leave can be granted for an extension of time 22 months after expiration of time limit 'decision', 'in connection with', 'in relation to', 'conduct' administrative law practice and procedure words and phrases

Following repeated failure by the appellants to comply with orders requiring them to make discovery of documents, the learned federal magistrate ordered that the appellants' defence be struck out. On the following day, the matter proceeded on an undefended basis, and the federal magistrate gave judgment against the appellants, in favour of the respondent to this appeal. The appellants contend that his Honour should not have placed them in a position in which they are subject to a judgment for a substantial sum of money, without having had the opportunity to have the issues in the proceeding tried. The appeals raise questions of principle relating to the application of sanctions, such as refusing to allow a party to defend a proceeding, consequent upon default by that party in compliance with orders of the court. On 21 June 2007, the respondent, Ms Wang, filed in the Federal Magistrates Court an application and statement of claim, naming the first appellant, Heng V (Australia) Co Pty Ltd (ACN 101 665 785) ("Heng V"), as first respondent and Duff T Lee, also known as Tian-Fu Li ("Mr Lee"), as second respondent. Against Heng V, Ms Wang alleged contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act ") by reason of false representations, alleged to have induced Ms Wang to become involved in a business arrangement with Heng V, and to pay over a large sum of money. Mr Lee was sued pursuant to s 75B of the Trade Practices Act , on the basis that he was involved in the contravention. Ms Wang claimed repayment of the sum of $245,000, together with substantial sums by way of interest on that sum. Alternatively, she claimed damages. On 25 July 2007, the federal magistrate conducted a directions hearing, at which his Honour laid down a timetable for pleadings and other interlocutory steps. His Honour made orders requiring each party to file and serve a list of discoverable documents by 24 October 2007, and to complete inspection of discovered documents by 31 October 2007. His Honour also fixed the proceeding for trial, to begin on 10 December 2007. On 6 December 2007, the federal magistrate made further orders. His Honour vacated the trial date for 10 December 2007 and refixed it for 14 April 2008. On 5 March 2008, there was another directions hearing. In the event those documents are unable to be produced, or do not exist, the [ appellants ] on Affidavit must give explanation of their inability to produce the same. " His Honour also adjourned the proceeding to 15 April 2008. On the latter date, his Honour dealt with the proceeding as undefended. He received an affidavit sworn by Ms Wang, and found that there was evidence establishing each of the elements of the cause of action in the statement of claim. His Honour declared that an agreement entered into between the parties was void from its inception, and ordered that Heng V and Mr Lee pay Ms Wang $245,000, together with statutory interest on specified amounts of that total sum from specified dates, and the costs of the proceeding. On 6 May 2008, Heng V and Mr Lee filed in this Court a notice of appeal, purporting to be an appeal from the orders made on 1 April, 14 April and 15 April 2008. At the initial directions hearing, I raised the question whether leave to appeal from the orders of 1 April 2008 and 14 April 2008 was necessary, as those were clearly interlocutory judgments. I gave directions for the filing of: an application for an enlargement of the time to apply for leave to appeal from the judgment of 14 April 2008; an application for leave to appeal from that judgment; any affidavit in support of those applications; a notice of appeal from the judgment of 14 April 2008; and an amended notice of appeal from the judgment of 15 April 2008. On 30 June 2008, I extended the time for leave to appeal from the judgments of 1 April and 14 April 2008 to 8 May 2008 and 26 June 2008 respectively. I granted leave to appeal from the judgments of 1 April 2008 and 14 April 2008. I directed that the appellants file and serve a notice of appeal relating to the judgment of 1 April 2008 and that their draft notice of appeal filed on 26 June 2008 stand as their notice of appeal from the judgment of 14 April 2008. It was apparent that the correctness of the final judgment of 15 April 2008 was so bound up with the previous orders that leave ought to be granted, so that all questions could be before the Court on the hearing of the appeal. On 26 June 2008, the appellants filed an amended notice of appeal from the judgment of 15 April 2008. They did not file an amended notice of appeal from the orders of 1 April 2008. On 1 April 2008, and again on 14 April 2008, Mr Lee appeared without legal representation. On 1 April 2008, the federal magistrate had before him an affidavit of Ms Wang's solicitor, Mr Lim, concerning the failure of the appellants to make discovery of documents. In the affidavit, Mr Lim recounted that an appointment was made with the appellants' then solicitor, Yong Peng, at Mr Peng's office, at 10.00 am on 19 March 2008, to inspect documents. The affidavit then proceeded as follows: On the 19 March 2008 at about 10.10 am I attended at the offices of the [ appellant ]s' Solicitors where I met Yong Peng and [ Mr Lee ]. Shortly after that Yong Peng left us and went into his room to attend to his other clients. He merely told me that he had brought with him more than 10,000 pages of documents not arranged properly and I would need to search for what I wanted to inspect and copy. To this [ Mr Lee ] said he could not be bothered what the Court ordered. If [ Ms Wang ] or I refused to pay him $3,000 he would not permit inspection. I told Yong Peng what happened and what [ Mr Lee ] said to me. He insisted that if I refused to pay the $3,000 he demanded he would not allow me to inspect the documents he had allegedly brought to Yong Peng's offices that day. I told him in the presence of Yong Peng that I was not there to argue with him and if he refused to allow me to inspect the documents that day I will leave. On 1 April 2008, Mr Lee indicated to the court that he needed to instruct new lawyers and needed the assistance of an interpreter. After the federal magistrate had made the orders on that day, his Honour endeavoured to explain the effect of them to Mr Lee. He informed Mr Lee that he would receive an order in the mail on the following day, and should see a solicitor straight away. Mr Lee protested that he would need to discover about 70,000 pages and, to do this, needed two persons working for two months. He insisted that he could not do this. The federal magistrate explained that it was necessary for Mr Lee to allow access to those documents that had been listed. Notwithstanding that the appellants had no legal representation on and after 1 April 2008, two affidavits were sworn and filed by Mr Lee, one on 7 April 2008 and the other on 9 April 2008. Each of these affidavits was expressed in English, with no indication in the jurat clause of the involvement of any interpreter. The affidavits are substantially in the form required of such documents when filed in a court. They are expressed in numbered paragraphs. In para 7 of the affidavit of 7 April 2008, Mr Lee took the point that one class of documents of which Ms Wang's solicitor sought discovery was "Group Certificates", but that "Group Certificates" had been replaced by "'PAYG' (payment summary-individual non-business)" some five years earlier, following tax reform in Australia. He also indicated that the appellants had not completed balance sheets and profit and loss statements for the financial years ended 30 June 2006 and 30 June 2007 and that, as the appellants did not purchase and import any equipment, they did not have and could not produce packing lists, bills of lading and tax invoices. In para 8 of the affidavit, Mr Lee stated that most of the documents requested by Ms Wang were unable to be produced for inspection by the applicant because: There are about 60,000 pages of the documents requested by [ Ms Wang ] in hand. We will forward to you our final account earlier [ sic ] next week. This letter advised that Mr Peng had ceased to act for Mr Lee and that Mr Peng intended to file a notice to that effect on 28 March 2008. Therefore, we can not [ sic ] attend the Hearing on 1st April 2008. Could you please supply the language services and arrange an English-Mandarin Chinese interpreter at the Hearing. Shown to me are the copies of three letters faxed to myself dated the 20 December 2007, the 15 January 2008, and the 12 February 2008 marked as Exhibit "FL-3". This affidavit detailed an attempt by him to inspect the appellants' documents on 8 April 2008. The affidavit included a complaint that documents that were produced were not arranged as requested and as ordered by the court. He said that I will have to plough through the documents he had brought that day if [ Ms Wang ] wanted to inspect them. It said that the documents that were produced were not arranged in chronological order, or according to subject matter, and the appellants had not made arrangements for a photocopier to be available at the motel at which inspection took place. On 14 April 2008, the federal magistrate inquired of Mr Lee what he had done between 1 April and 14 April 2008 to get new solicitors. Through an interpreter, Mr Lee said that he had telephoned one solicitor, whose name he gave, but she said the time was too limited for her to read through so many documents. Mr Lee also said he told his previous solicitor to find another one for him, "but we didn't have so much time so we couldn't find me a new one. " The federal magistrate also asked Mr Lee some questions about the attempted inspections of documents. Mr Lee alleged that, on 19 March 2008, Ms Wang's solicitor had been 38 minutes late, and that he had lied to the court in his affidavit about what time he arrived at Mr Peng's office. We have carried out my computer three times back and forth on that day. Mr Lee referred to the fact that his father was dying and that he had not seen him for seven years. His Honour found on the affidavit material filed by Ms Wang's solicitor that there had not been proper compliance with the orders for discovery. I am unpersuaded by his evidence from the bar table he spoke to a lawyer on the phone and never bothered to follow up with seeking advice from another lawyer about today's final hearing. I am unpersuaded that there is a reasonable excuse for the failure to comply with the previous orders made, and I am unpersuaded as to his explanation for those failures. Part 14 of the Federal Magistrates Court Rules contains provisions relating to discovery of documents, including provisions for the making of orders requiring discovery of particular documents or classes of documents, and provisions for the inspection of documents. The appellants contended that they had complied substantially with the orders for inspection of documents made on 5 March 2008 and 1 April 2008. Alternatively, any non-compliance with the order of 5 March 2008 was insufficiently serious to require the making of a self-executing order on 1 April 2008, or the strike-out order of 14 April 2008. Alternatively, by the time the appeals were heard, the appellants would have complied with the orders and it was in the interests of justice that the appeals be allowed. Further, the orders of 1 April, 14 April and 15 April 2008 ought not to have been made without first giving the appellants an opportunity to be heard on the question whether those orders ought to be made, and the assistance of an interpreter. Presumably in support of the contention that the appeals should be allowed because the orders in respect of discovery and inspection would have been complied with by the time the appeals were heard, the appellants filed in this Court a further list of documents, bearing the title of the proceeding in the Federal Magistrates Court. They also filed affidavit material about steps taken to make available for inspection discovered documents in the proceeding in the court at first instance. Ms Wang filed an affidavit contesting those steps. Written submissions filed originally on behalf of the appellants tended to focus largely on what was said to be the self-executing nature of the order made on 1 April 2008, although it was conceded that the order did not provide for the entry of judgment on the default occurring, but simply for the striking out of the defence. It was contended that, if a self-executing order had been made in the "usual form" on 1 April 2008, it would have been possible for the appellants to comply with the order out of time, and to seek to extend the time for compliance even after judgment had been entered. It was contended that this Court undoubtedly had power to set aside the orders made on 1, 14 and 15 April on the grounds raised in the notices of appeal. Supplementary submissions were filed on behalf of the appellants, following a change of counsel. The contention was that the orders of 15 April 2008 were made because of non-compliance with the order for discovery, and because of the appellants not being ready to proceed with the trial of the proceeding. It was said that the appellants had complied substantially with the orders for discovery. To the extent they had not, it was because of their lack of representation and problems associated with obtaining it, and Mr Lee's lack of understanding of English. Reference was also made to the application for adjournment, based on the serious illness of Mr Lee's father in China. It is abundantly clear that the order of 1 April 2008 was not a self-executing order. Paragraph 1 of that order required compliance with the order of 5 March 2008 by 8 April 2008. Paragraph 2 in effect amounted to a warning that, if there were to be a failure to comply, the court would take further action to strike out the defence of the appellants and to deal with the matter as an undefended matter. In other words, it was stated clearly that further steps would be taken in the event of non-compliance. This is not the form in which self-executing orders have been made in the past. If there were any doubt about the nature of the orders of 1 April 2008, it is clear that the federal magistrate did not treat them as self-executing orders on 14 April 2008. On that date, his Honour dealt with the question whether there had been compliance and made a specific order striking out the appellants' response, defence and cross-claim (it is not clear that there was any cross-claim filed in the proceeding). Although the proceeding was thereby undefended, and it might have been open to his Honour to give judgment for Ms Wang on her statement of claim, his Honour very properly adjourned the hearing to the following day and gave judgment on the basis of evidence in Ms Wang's affidavit. In the course of the hearing of the appeal, I drew the attention of counsel for the appellants to the fact that the orders of 1 April and 14 April 2008 resulted from exercises of judicial discretion. An appeal from a judgment involving an exercise of judicial discretion is not to be resolved according to the manner in which the appeal court thinks that the discretion should have been exercised. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Counsel for the appellants contended that the federal magistrate had failed to give sufficient weight to the fact that Mr Lee was not fluent in English and did not have the benefit of an interpreter, to the fact that the appellants were without legal representation, and to the fact that Mr Lee's father was seriously ill in China. Counsel for the appellants also contended that the federal magistrate had acted upon a wrong principle, by failing to apply the correct principle. The correct principle advanced was that a party should not be made to suffer a judgment for a large sum of money without being entitled to a trial and judgment on all of the issues in a proceeding to which that person is a party. The principles enunciated in House as those upon which an appeal court approaches the exercise of discretion by the court appealed from do not speak of the weight to be given to various considerations. Those principles are concerned with whether or not the judge at first instance took into account irrelevant matters at all, or failed to take into account all material considerations. It is very clear from the reasons for judgment he gave on 14 and 15 April 2008 that the federal magistrate took into account the fact that the appellants were not legally represented and that Mr Lee's father was seriously ill in China. As the transcript of what occurred on 14 April 2008 shows, his Honour was also concerned to ensure that Mr Lee understood what was going on, despite his lack of English. The case was stood down from 10.30 am until 2.15 pm because of the unavailability of an interpreter in the morning. In substance, the hearing on 14 April 2008 was conducted through an interpreter. Even on 1 April 2008, when no interpreter was present, the federal magistrate took pains to ensure that Mr Lee would understand the order that was made. His Honour stressed that Mr Lee should see a solicitor about the order. If it were a matter of the weight to be attached to these considerations, there is much that could be said about the conclusion to which the federal magistrate should have come. In the first place, there is the account by Mr Lim of the attempted inspection of documents on 19 March 2008. This account was never refuted by Mr Lee, despite Mr Lee filing two subsequent affidavits. Even when he had an interpreter available to him, the only response Mr Lee made to this on 14 April 2008 was to allege that the solicitor had lied about the time that he had arrived at the offices of the appellants' former solicitors, to carry out the inspection of documents. There was no attempt to counter Mr Lim's allegation that Mr Lee had demanded the payment of $3,000 before he would comply with the court's order. There was no attempt to refute the allegation that he had maintained this demand, despite the advice of his own solicitor that he was obliged to comply with the order and could not demand money before doing so. When he appeared before the federal magistrate on 1 April 2008, Mr Lee did not attempt to explain why it was that the appellants' former solicitors had ceased to act for them. No explanation for the fact that the appellants had become unrepresented was ever offered, to the Federal Magistrates Court or to this Court. On 14 April 2008, when he was asked about attempts he had made to obtain legal representation, Mr Lee made it clear that he had not made any serious attempt. He had telephoned one solicitor who refused to act, and requested his former solicitors to find a replacement. It is not surprising that the federal magistrate regarded this as a failure to take an opportunity given. Further, Mr Lee's affidavit of 7 April 2008 (the day before the new deadline for producing documents for inspection) demonstrated that Mr Lee had no intention of attempting to comply with the court's order. Apart from taking the smart point about the abolition of group certificates, the affidavit set out a timetable that Mr Lee said was needed, in order to comply, and would justify adjourning the trial of the proceeding for a further six months or more. The timetable was an admission that the order of the Federal Magistrates Court with respect to inspection of documents had not been complied with. It was also a statement that Mr Lee had no intention of attempting to comply on 8 April. In this context, the sudden reliance on the illness of Mr Lee's father in China, the subject of the affidavit of 9 April 2008, could be seen as a desperate attempt to put off the inevitable. From the affidavit, it appeared that Mr Lee's father had been seriously ill since December 2007. Although he claimed to have received a call from his sister, to tell him that their father was dying and that Mr Lee should return immediately, and that that information reached him on 7 April 2008, all that Mr Lee could say on 9 April was that he was arranging for a visa and for a flight to China. This led him to advance two reasons for his alleged inability to attend the trial on 14 April. One was the lack of legal representation for the appellants and the other was the need to visit his father. Instead of seeking an adjournment for such time as would have enabled him to obtain legal representation and to visit his father, Mr Lee sought an adjournment of the trial for the same period as that requested in his affidavit of 7 April on other grounds. Notwithstanding the sworn statement that he would be unable to attend on 14 April, Mr Lee was present. His explanation that he was present out of respect for the court appears a little thin. Notwithstanding that the federal magistrate accepted that Mr Lee's father was seriously ill in China, it is no surprise that his Honour did not grant an adjournment to enable Mr Lee to visit his father. In the light of Mr Lee's obvious disdain for repeated orders in relation to discovery and inspection of documents, it is no surprise that the federal magistrate took a view adverse to the appellants as to whether they were making serious attempts to prepare for the trial of the proceeding. In relation to the lack of legal representation, it is no surprise that the federal magistrate took the view that Mr Lee had taken insufficient advantage of an opportunity the court had allowed him to comply with previous orders and to be ready to defend the proceeding at the trial. If it were a question of the weight to be given to the various factors on which the appellants relied, I should certainly not regard the federal magistrate as having failed to give them sufficient weight. This leaves the question of principle on which counsel for the appellants relied. The principle that a party to a proceeding ought not to be subjected to a judgment for a large sum of money without a trial was said to be derived from the judgment of the Full Court of the Supreme Court of Victoria in Freeman v Rabinov [1981] VR 539. In that case, a judge managing cases had made a self-executing order dismissing a plaintiff's claim and striking out his defence to a counterclaim of the defendant, unless the plaintiff filed and delivered a supplementary affidavit of documents by a specified time. The judgment of the Full Court was delivered by Lush J, with whom Murray and King JJ concurred. There, Lush J referred to the strength of the argument against the plaintiff, because of a series of defaults in making discovery and in other matters, and the gross inadequacy of discovery that had been made. The final position, however, is that the plaintiff is on risk of suffering a large judgment in damages without a trial, while in the end the defendant obtained the information which it needed, although still not in the proper form, about one month after it should have been delivered pursuant to the order of 28 February 1980. Mr. Merkel contended that that order had been properly made by the Judge in exercise of the disciplinary powers of the Court to compel compliance with its rules and orders, and to compel the taking of the necessary steps in the action with expedition. These matters may be accepted, but in the end the circumstance that the defendant stands at risk of sustaining a heavy judgment without a trial is in all the circumstances of this case decisive. It is more difficult to argue, however, that the case gives rise to a principle that a party can never be subjected to a judgment for a large sum of money without a trial. The adoption of such a principle would amount to an invitation to litigants to disregard orders of the Court, knowing that they were immune from the entry of judgment in consequence of their defaults. Further, much has happened since Freeman was decided. There has been a considerable expansion in the adoption of the system of case-management by judges in Australia and in England. Particularly in this Court, and in the Federal Magistrates Court, management of cases from inception to resolution by an individual judge has become routine. Case-management principles are backed by the provisions of rules of court, such as those found in rr 13.03, 13.03A and 13.03B of the Federal Magistrates Court Rules . Such rules provide expressly for the very thing that occurred in this case, namely for the giving of judgment against a defaulting party without a trial, because of the default. Such powers are not to be exercised lightly. A judgment for a large sum of money is a significant consequence to visit upon a defaulting party. In State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 141 ALR 353 , the High Court allowed an appeal from a refusal to permit a late amendment of a defence. The refusal had been based on the fact that the amendment would jeopardise the dates fixed for the trial of the proceeding. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion. The High Court reversed the order of the primary judge allowing the plaintiff to make substantial amendments to its claim at the start of the trial. At [92], Gummow, Hayne, Crennan, Kiefel and Bell JJ referred to the fact that case-management "is now an accepted aspect of the system of civil justice administered by courts in Australia. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. There is no such entitlement. All matters relevant to the exercise of the power to permit an amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future. In many senses, it is more serious. It is a case of repeated refusals, not merely failures, to comply with orders of the court requiring the appellants to make discovery of documents and to allow Ms Wang's solicitor to inspect their discovered documents. Mr Lee had persisted with a demand for payment as a pre-condition for providing inspection of documents, despite advice from his own solicitor that this was not a course open to him. Even in the face of deadlines specified by the federal magistrate for the performance of obligations under earlier orders, Mr Lee proposed leisurely timetables for the performance of those obligations and a further adjournment of the trial, which had already been adjourned once. The circumstances in which the appellants had ceased to be represented by their solicitor were never revealed, making it more difficult for them to rely on lack of representation as a factor justifying the adjournment of the trial. It is significant that, despite the lack of representation and Mr Lee's difficulty with English, the two affidavits of 7 and 9 April demonstrated to the federal magistrate that Mr Lee had access to someone who was sufficiently fluent in English, and had sufficient understanding of the court processes, to produce affidavits in something close to the proper form. It would have been open to the federal magistrate to reach the conclusion that Mr Lee was attempting to postpone an inevitable judgment against the appellants on Ms Wang's claim, and that the need to visit his father in China was raised as part of such an attempt. The fact that the federal magistrate was kinder to Mr Lee than he needed to be, by not making such a finding, should not lead to a successful appeal from the exercise of the federal magistrate's discretion. If the powers given by rules of court to give judgment against a defaulting party were never to be exercised, because of a supposed principle that judgment for a large sum of money should not be given without a trial, the grants of express powers by rules would be hollow. Case-management would be deprived of its only real sanction against a party who, while resisting a claim for a substantial sum of money, defaults persistently in complying with orders of a Court. The framers of rr 13.03A and 13.03B of the Federal Magistrates Court Rules cannot have intended that those rules should be subject to such a principle that would enable a party against whom a substantial monetary claim is made to defend that claim by failing persistently to take steps necessary to bring the claim on for trial. Any principle derived from Freeman is much more limited than that suggested by counsel for the appellants. Freeman is best regarded as turning on its particular circumstances, and as belonging to an era before the broad adoption of case-management principles. As the recent judgment in Aon shows, case-management principles have assumed a greater importance than they were thought to have had, even as recently as 1997, when JL Holdings was decided. It is clear from the second passage I have quoted from Aon in [36] above that the principle stated in JL Holdings should no longer be followed. If there remains a narrower principle derived from Freeman than that suggested by counsel for the appellants, such a principle could not be applicable in the present case. There is no injustice in judgment for a large sum of money against Heng V and Mr Lee, having regard to Mr Lee's apparent determination not to comply with repeated orders requiring him to produce for inspection all of the appellants' discoverable documents. Counsel for the appellants made no submission that the usual principle, that costs follow the event, should not be applied in the event that the appellants were unsuccessful. Applying that principle, the appellants should be ordered to pay Ms Wang's costs of the appeals. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

case-management judgment in default of compliance with orders for discovery and inspection of documents persistent refusal to make documents available for inspection whether principle that a party should not be made to suffer a judgment for a large sum of money without being entitled to a trial and judgment of all of the issues in a proceeding to which that person is a party relevance of case-management powers and principles practice and procedure

Almost immediately thereafter he applied for a protection visa. A delegate of the Minister refused to grant him the visa and this decision was affirmed on review by the Refugee Review Tribunal ('the Tribunal'). On 15 December 2005 the Federal Magistrates Court set aside the decision of the Tribunal by consent. The matter was remitted to the Tribunal and a freshly constituted Tribunal again affirmed the decision of the delegate. The appellant again applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal. On this occasion his application was dismissed. 2 This appeal from the later judgment of the Federal Magistrates Court is brought on two grounds. The appellant claims that the learned Federal Magistrate should have found, first, that the Tribunal failed to take into account relevant material, and, secondly, that the Tribunal failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth) ('the Act'). He claimed that he was a member of MASSOB and as such found out about a plot to assassinate the Governor of Abia State. He claimed that he disclosed the plot to the Governor's secretary in December 2003. He further claimed that in March 2004 he was told that he was on a wanted list held by the Nigerian State Security for reason of his involvement with MASSOB, which is an Igbo organisation. He claims that after he received this information he left Nigeria and fears return because of his history of involvement in MASSOB and his Igbo ethnicity. The Tribunal also disbelieved his claim to be a member and a financial supporter of MASSOB at least in part because the claim was not advanced in his original claim for a protection visa. The Tribunal did not give the appellant particulars of any information touching on his original claims for a protection visa pursuant to s 424A of the Act. 5 The Tribunal then gave consideration to the appellant's situation as a person of Igbo ethnicity if he returns to Nigeria. It noted that many Igbos were involved in a civil war seeking the establishment of a separate Biafran state but that since the end of that war Igbos have continued to participate in the culture and life of Nigeria without mistreatment or discrimination for reason of ethnicity or tribal grouping. Nigeria has suffered many and various instances of intercommunal violence and conflict sometimes involving members of the Igbo tribal group however there is no information which suggests that the current government condones such violence or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non discriminatory basis (UK Home Office Country Assessment 2005) The applicant claims that he faces harm in returning to Nigeria as an Igbo however he has not provided any information which would support such a claim other than his own speculative assertion. The Tribunal did have regard to the independent information before it and then reached a conclusion open to it on that information. In this case, there was evidence which went both ways and the Tribunal reached the conclusion that there was no real chance that the applicant would suffer persecution because of his Igbo ethnicity. This is a finding of fact and a matter for the Tribunal that should not be disturbed by this Court. I am not satisfied that the first ground can be sustained. His Honour was satisfied that the decision of the Tribunal was not based on an inconsistency between what was said in the protection visa application and what was said to the Tribunal. The first respondent submitted that the Federal Magistrate had correctly understood the import of the passage when his Honour characterised it as recording a conclusion reached after the Tribunal had evaluated evidence that went both ways (see [7] above). 10 I accept that Tribunals, and particularly lay Tribunals, sometimes assert that there is 'no evidence' on an issue when they mean that, although there is some evidence on the issue, they do not regard the evidence as sufficient to support a particular finding (see, for example A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [23] - [27] and Wickramasinghe v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 30 at [18] ). In every case the meaning intended to be conveyed by the Tribunal is to be determined by reference to the language used by the Tribunal understood in the context provided by the Tribunal's reasons for decision as a whole. In this case, having twice asserted that there was 'no evidence' of a particular character, the Tribunal went on to state that the appellant had not provided 'any information which would support [his] claim other than his own speculative assertion' . I conclude that the Tribunal's language, understood in the context provided by its written reasons as a whole, suggests that the Tribunal intended to convey that there was no evidence at all on the two matters identified by it. 11 It is not in dispute that there was considerable country information before the Tribunal that suggested that membership of MASSOB had given rise to targeted harm by state authorities in recent years. The Tribunal, however, did not accept that the appellant was either a member or a financial sponsor of MASSOB although it found that he was sympathetic to the aims of the organisation. The Tribunal noted that the appellant admitted that he was not an active member of MASSOB and that the only MASSOB rally that he had attended was held in 2002. 12 Most of the country information upon which the appellant placed reliance concerned brutal or harsh treatment by the authorities of members of MASSOB or people caught up in MASSOB activities. Some information, however, related to MASSOB sympathisers. There was a philosophy of an Igbo-renaissance amongst young Igbo men and women born since the civil war and they have found allies in the Igbo diaspora. This has been exploited by MASSOB. However, MASSOB is very much a fringe group but because of government over-reaction to it, has gained support. The government is strongly opposed to MASSOB and several members and supporters have been arrested and detained for months even though MASSOB insists that it is a non-violent movement. Professor Utomi explained that the ghost of MASSOB has created concern within the SSS and now and then its forces have over-reacted. In spite of this a large number of suspected MASSOB members or sympathisers are detained in Abuja and the government has refused to release them on bail. I am not satisfied that any of it, including the reports referred to in the UK Home Office Report and the Afol News, is correctly characterised as information that suggests that membership of the Igbo tribal group (as opposed to membership of MASSOB) has given rise to targeted harm by State authorities. Nor am I satisfied that the country information indicates that those who are merely sympathetic to the aims of MASSOB (as opposed to active supporters of the movement or its activities) have experienced targeted harm by State authorities. 15 The Tribunal's statement to the effect that there is no information which suggests that the current government of Nigeria condones instances of conflict and inter-communal violence sometimes involving members of the Igbo tribal group, or that it is unwilling or unable to provide a reasonable level of protection to its citizens on a non-discriminatory basis, is more problematic. It is necessary first to determine the meaning of the statement and, in particular, its second part. The preferable view of that part, it seems to me, is that the citizens to which it refers are Nigeria's citizens who are members of the Igbo tribal group. ... Security forces committed extrajudicial killings and used excessive force. ... Impunity was a problem. ... Security forces continued to arrest and detain persons arbitrarily, including for political reasons. 17 Importantly, however, neither of the reports noted by the Home Office Report referred explicitly to conflict or inter-communal violence involving members of the Igbo tribal group. The USSD 2004 Report is expressed in general terms and the January 2005 report drew attention particularly to religious conflict between Christian and Muslim communities. 18 Each of the matters concerning which the Tribunal asserted that there was 'no evidence' was defined narrowly. None of the country information on which the appellant relied fell unambiguously within those narrow definitions. For this reason, the Tribunal's statement identified in [5] above is not, in my view, necessarily inconsistent with its having considered the country information that was before it. As it is not open to the Court to review the merits of the Tribunal decision, it would be inappropriate for the Court to express a view on whether it would have reached the same conclusion as the Tribunal on the material before the Tribunal. 19 For this reason, while I accept that the Federal Magistrate misconstrued the relevant passage in the Tribunal's reasons for decision, I conclude that the first ground of appeal fails. The applicant made this claim after his application for a protection visa was refused for the reason that his fears were not Convention related. After the refusal he then claimed that he was a member of MASSOB, a political group which had suffered some mistreatment by government authorities in Nigeria from time to time. I consider that he added this claim to establish that his fears arose for one of the reasons set out in the Convention, that is, political opinion. He claimed that in the circumstances the Tribunal should have put the inconsistency to the appellant in writing, explained its relevance and provided him with an opportunity to comment on it. 23 I accept the submission of the first respondent that the above submission is inconsistent with the recent decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609. While the full import of that decision awaits clarification, the majority judgment makes clear that s 424A has a more limited operation than was previously assumed. It had been argued before the High Court that passages from the appellant's statutory declaration that the Tribunal regarded as inconsistent with his evidence at his hearing should have been the subject of a notice under s 424A of the Act because those inconsistencies were the reason, or part of the reason, for the Tribunal's decision to affirm the decision under review. 24 The majority judgment in SZBYR at 615-617 at [17]-[21] makes clear that, in the circumstances of that case, the relevant parts of the statutory declaration of the appellant in support of his claims to be entitled to a protection visa were not 'information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review' . The circumstances of SZBYR are not in this respect distinguishable from the circumstances of this case. I therefore reject the submission of the appellant that the Tribunal was obliged to comply with s 424A of the Act with respect to the information available to it concerning the content of his protection visa application. It is therefore unnecessary for this Court to determine whether the Federal Magistrate erred in finding that the decision of the Tribunal was not based on an inconsistency between what the appellant said in his visa application and what he said to the Tribunal. 25 The second ground of appeal also fails. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

judicial review whether failure to consider relevant material reference to independent country information evidence application of s 424a migration act 1958 (cth) held: appeal against federal magistrate's decision dismissed migration

On 28 December 2007 he applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. That application was refused by a delegate of the Minister on 27 March 2008. An application for review was thereafter filed with the Refugee Review Tribunal on 28 April 2008. The Tribunal affirmed the decision not to grant the visa sought on 23 July 2008. An application for review was filed in the Federal Magistrates Court on 25 August 2008. An amended application was filed in that Court on 11 November 2008. A further amended application was filed on 16 March 2009. Notwithstanding the fact that this further amended application contained some eleven grounds upon which review was sought, only one ground was ultimately relied upon --- the rest were abandoned. The one ground relied upon alleged " jurisdictional error by failing to accord ... procedural fairness ... ". A Federal Magistrate dismissed the proceeding on 31 March 2009: SZMRS v Minister for Immigration and Citizenship [2009] FMCA 263. An Application for an Extension of Time to file and serve a notice of appeal, a supporting Affidavit and a Draft Notice of Appeal were filed in this Court on 23 April 2009. He appeared unrepresented although he did have the assistance of an interpreter. As events transpired, the services of the interpreter proved unnecessary. The Applicant was able to follow the oral submissions advanced on behalf of the Minister by his Counsel. It is considered that an extension of time should be granted but the Appeal should be dismissed. In the present proceeding, the Respondent Minister correctly contends that no Notice of Appeal was filed within that time. The delay in filing was two days. Although no claim of prejudice is made on behalf of the Minister, an extension of time of even two days was initially opposed upon the bases that: no explanation had been provided for the delay; and the Appeal was " doomed to fail " even if an extension were granted. This was supplemented by a further letter tendered during the course of the hearing, which asserted that the Applicant believed he had 28 days --- and not 21 days --- within which an appeal could be filed. In those circumstances, Counsel on behalf of the Respondent Minister accepted that an explanation had been given for the delay; in opposing the extension sought, reliance was thereafter thus placed upon the submission as to prospects of success. An extension of time may be granted where there are " special reasons ": O 52 r 15(2). It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this. The discretion to grant an extension of time is obviously not confined to those circumstances in which an appeal would thereafter succeed. An extension may be granted where, to do justice between the parties, the Court should consider and resolve a case on its merits rather than resolving it by reference to a failure to comply with a procedural requirement. In circumstances such as the present, where it is considered that an applicant seeking an extension of time has a case of some merit, where the extent of the delay is minimal and where no prejudice has been occasioned to the respondent, an extension of time should normally be granted. In the present proceeding, an extension of time is granted pursuant to O 52 r 15(2) extending the time within which a Notice of Appeal may be filed to 23 April 2009. The draft of the proposed Notice of Appeal as filed on that date is to be treated as the Notice of Appeal . Party supporters, it was claimed, were detained " by the ruling party ". His father was said to have been an Awami League leader and the Applicant claimed that if he returned to Bangladesh he too would be pressured to get involved in politics again. Letters in support of these claims were submitted from the Awami League to the Tribunal. With respect to these letters the Tribunal member " informed the applicant that the Tribunal had been informed by the Awami League at a senior level via the Australian High Commission in Bangladesh that such letters were easy for party supporters overseas to obtain ". The Tribunal member explained to the Applicant during the hearing that, while " such letters may be genuine, the Tribunal put little weight on them " in reviewing protection visa decisions. The case as advanced before the Federal Magistrate focussed attention upon one particular letter --- a letter dated 10 June 2008. A faxed copy of this letter was received by the Tribunal after the hearing had occurred, yet six days before the date on which the Tribunal decision was signed. The original version of letter was also sent to the Tribunal prior to its decision. At Present he is the Vice-President of Word - 04 Awamileague. At present time he is under pressur by the local community and by the law & Administration. In addition to the factor discussed with the applicant at hearing about such documents generally, the one he submitted is dubious in other ways. The banner at the top has been blacked out and there are spelling mistakes within it, hardly likely in a document emanating from the office of a party President. I do not accept, therefore, that either the applicant or his father have any formal position in their party. [37] I do not accept, therefore, the applicant's claim that, if he were to return to Bangladesh, he would be pressured to re-enter political activity. Moreover, even if he were to do so for any reason at all, the country information amply canvassed with the applicant at hearing shows that there has been a very significant drop in political violence in Bangladesh since early last year and arrests of political leaders have concentrated on charges of corruption. Political leaders engaged in for example party reform activities have gone about their business unmolested. The reasons for decision of the Tribunal expose the importance of this June 2008 letter to the ultimate conclusion it reached. The observations of the Tribunal in respect to the letter cannot be discounted as observations in respect to a matter that assumed only marginal or passing significance. The Respondent Minister did not contend otherwise. I do not accept that there is a real chance of the applicant suffering harm amounting to persecution in Bangladesh for reason of his family's or his political affiliations or activities. For the same reasons, I do not accept that the applicant or his family have been threatened and I do not believe the claim that a gang of thugs came to the applicant's father's house in May 2008 looking for the applicant or that they had been looking for him since November 2007. In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness. This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision. But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness. Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party's credibility. Whilst the Tribunal stated that it did not give the June 2008 Letter any weight and stated that the June 2008 Letter was " dubious in other ways ", the Tribunal referred in particular to the blacked out banner and the spelling mistakes. Certainly, it was open to the Tribunal to have regard to the spelling mistakes in characterising the letter as " dubious ". The blacked out banner, whilst forming part of the Tribunal's expression that the June 2008 Letter was " dubious ", did not cause the Tribunal to find that the June 2008 Letter was a forgery. Rather, the weight given by the Tribunal to the content of the June 2008 Letter provided no support to the " genuineness " of the Applicant's claims that his father was a vice president of the local Awami League. [43] In the circumstances, I am satisfied that the consideration by the Tribunal of the June 2008 Letter did not reflect a positive finding that the document was not genuine. Rather, the June 2008 Letter was simply a document that the Tribunal did not find provided any further corroborative evidence in respect of the Applicant's claims. In the present appeal there can be no doubt that the Applicant was on notice that the Tribunal " put little weight " on letters from the Awami League because " such letters were easy for party supporters overseas to obtain ". So much had been canvassed with the Applicant during the course of the Tribunal hearing. Indeed, another letter in substantially similar terms and dated 15 May 2003 was before the Tribunal at the time of the hearing. But in respect to the June 2008 letter, no notice had been given as to the additional factor relied upon by the Tribunal --- namely the other " dubious " qualities of the letter. In the present proceeding, however, the question to be resolved did not depend upon whether the June 2008 letter was genuine or a forgery. The Tribunal accepted that " such letters may be genuine ". The question to be resolved was the weight to be given to the June 2008 letter. If the weight to be given to any particular document or letter is to be affected by reasons other than those previously canvassed during the hearing, it is obviously a far preferable course for those other reasons to be disclosed and an opportunity expressly provided to respond to those reasons. Once such an opportunity has been provided, it is thereafter a matter for the Tribunal alone to give to the evidence before it such weight as it sees fit ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 291 to 292 per Kirby J), consistent with its duty to undertake a hearing de novo : ( SBLF v Minister for Immigration and Citizenship [2008] FCA 1219 , 103 ALD 566 per Gray J). However, no requirement is imposed upon the Tribunal to allow an applicant an opportunity to comment upon what are essentially its own thought processes ( SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18] , [2007] HCA 26 ; 96 ALD 1 at 8, approving VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24] , [2004] FCAFC 123 ; 206 ALR 471 at 476 to 477 per Finn and Stone JJ; WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 per French J, as His Honour then was, at [36]; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 , 47 AAR 314. But such a preferred course was not pursued by the Tribunal. It did not raise with the Applicant for his consideration those other matters which it considered gave the letter a " dubious " quality. The reason is simple. The June 2008 letter was forwarded to the Tribunal in July 2008, after the hearing had concluded. Notwithstanding the absence of such an opportunity to respond to the additional concerns of the Tribunal, it is nevertheless considered that there has been no denial of procedural fairness such as to warrant the Tribunal decision being set aside. The Applicant was clearly on notice that the Tribunal had considerable reservation in respect to letters such as the ones upon which he sought to rely. The opportunity was extended to him to advance such submissions in respect to this more generally expressed concern in such manner as he saw fit and to advance such further evidence as he considered appropriate. The additional factors relied upon by the Tribunal were but further factors in support of a conclusion that letters such as the June 2008 letter were to be given little (if any) weight. A necessity to expressly raise with the Applicant the more specific concerns of the Tribunal may have arisen had the Tribunal sought to rely on those concerns for a purpose other than supporting its conclusion as to the weight to be given to the letter. Albeit arising in the context of an appeal from a decision of the Administrative Appeals Tribunal, such was the concern of the Full Court in Habib v Director-General of Security [2009] FCAFC 48 at [71] , [2009] FCAFC 48 ; 175 FCR 411 at 429 per Black CJ, Ryan and Lander JJ. It is not incumbent upon the Tribunal to bring to the attention of a party before it each and every particular concern it may have in respect to a particular document such as the June 2008 letter. To do so would be to come perilously close to, if not to trespass into, a requirement that the Tribunal expose its tentative reasoning process for scrutiny prior to decision. In Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 , Emmett, Kenny and Jacobson JJ reviewed the constraints imposed by s 422B of the Migration Act 1958 (Cth) ("the 1958 Act"), being a provision contained in Part 7 Division 4 of that Act. In doing so they observed that " there was nothing in Division 4 to indicate that any of the procedural powers contained in it were to be used fairly " and that " it was possible that those powers could be used in ways that were not fair, without infringing the procedural requirements of Division 4 ": [2009] FCAFC 83 at [18] . The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO's Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case ( VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64] ). WACO's Case does not establish any new principle. But no generally expressed " unfairness " arose as a result of the manner in which the Tribunal proceeded and no jurisdictional error is exposed. Considerations as to whether a document is a forgery or whether there are other reasons why a document should be given little or no weight may presently be left to one side. Of present relevance is the fact that the Applicant had been " sufficiently alerted " by the Tribunal as to its concerns in respect to documents such as the June 2008 letter. To go further and impose upon the Tribunal a requirement to alert the Applicant to each and every factor which may weigh upon the Tribunal when assessing the weight to be given to that letter would be to impose a requirement to disclose its deliberative process. The opportunity guaranteed by s 425 of the 1958 Act " to give evidence and present arguments ", like the content of the rules of natural justice ( Habib, supra , at [77], 175 FCR at 430 per Black CJ, Ryan and Lander JJ) is to be interpreted and applied in a " practical " manner. Concurrence is expressed with the conclusion as ultimately reached by the Federal Magistrate. It follows that the Application for an extension of time should be granted but that the Appeal should be dismissed. There is no reason why costs should not follow the event. The Appeal is dismissed. The Applicant is to pay the costs of the First Respondent. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

procedural fairness non-disclosure of reasons why a letter was " dubious in other ways " weight to be given to letter no entitlement to comment on reasoning process of tribunal appeal filed 2 days out of time no prejudice to respondent extension of time granted migration practice and procedure

The products became corroded by reason of water which for present purposes I assume was at least some rainwater which fell on the product. 2 The claim made by the various plaintiffs was against carriers and those on shoreside who had some responsibility by way of handling of the product. The case is now settled against all parties bar one who had been served and two parties who had not been served. The claim in relation to those latter two parties will be discontinued. 3 The matter did not settle with the fifth defendant, Newcastle Stevedores, which had the responsibility of unloading the cargo. For present purposes, I will assume, though it may conceivably have been an issue in the case, that Newcastle Stevedores had possession of the goods as opposed to mere custody. That possession was not for a lengthy period of time but was, it was said, during the course of, and for the purposes of, the unloading of the goods. Thus Newcastle Stevedores was sued as bailee as well as in negligence. Subject to the terms of any bill of lading of which it might take advantage, as a bailee it bore the onus of proving that it had conducted its possession of the goods with all due skill and care. 4 Exhibit A reveals that shortly after Piper Alderman began to act for the fifth defendant it made it clear to the plaintiffs' solicitors that it denied negligence and denied any rainfall during the period of time of the conduct of the fifth defendant's responsibilities. At this time, the plaintiffs were working under the assumption of the general accuracy of the carrier's surveyor's report which had been given to them on a without prejudice basis by the carrier and which they supplied on a similar basis to Newcastle Stevedores. 5 This document had, as it turns out, an important typographical error in it, that is, of the date of discharge. The surveyor had included in the report that he boarded the vessel on 26 January 2004. In fact, he boarded on 25 January 2004. The reason that this becomes important is that during the course of this year when this error and its significance became apparent to solicitors on both sides there had been produced from the relevant authorities records which indicated that there was no rainfall in Newcastle in the relevant 24-hour period by reference to the surveyor boarding on the 25 th , whereas there had been some rainfall, albeit minor, in the following 24-hour period. 6 This inaccuracy could have been attended to earlier by the fifth defendant. Having said that, that is no personal criticism of the solicitors for the fifth defendant or indeed of their client. It does reveal, however, a matter which should be borne in mind by all parties to these kinds of claims, that is, a precise attention to the chronology of events in any cargo claim whether small or large is absolutely essential in order to ensure that only issues are run which are necessary to be run and only parties joined or remain joined who are necessary to the disposition of a case. 7 The difficulty that has occurred through this is that now the plaintiffs reasonably accept that the stevedore had nothing to do with the wetting of the cargo given that it unloaded it in a period of time in which there was no rain. Mr Davies on behalf of the plaintiff says that this should have been told to the plaintiffs six months ago. Mr Hunt on behalf of the fifth defendant says that his client has now discharged practically the relevant onus upon him and given that he would have won the case on this hypothesis and obtained his costs, perhaps at the expense of one of the other defendants, there should be no real difference at this point. 8 It is unfortunate that an oversight of this kind would have led to six months' costs for one party. Having looked at the correspondence, neither side was taking an unreasonable view on the material that was before them. It is difficult in cases of this kind not to join parties which appear to be possibly liable and in very many circumstances the facts become complex. In all the circumstances, however, I do not think the fifth defendant's conduct has been either sufficiently careless or deserving of any criticism to deny an award of costs. However, I would fashion the order of costs in this way. I propose to order that the plaintiffs pay those costs and no other. That is a measure of compromise, I accept that. Each party in these proceedings worked on a misunderstanding of the facts for a period of time and that certainly led to a difficulty in resolving the matter earlier. But I think in fairness to the fifth defendant it certainly should have its costs of preparing the case and running the case. The purpose of the order is simply to identify that it can pay its own costs of settling the case.

cargo claim costs discontinuance against one party misunderstanding of essential fact by both plaintiffs and defendant need for parties in cargo case large or small to pay precise attention to the facts. admiralty and maritime jurisdiction

On 2 April 2004 the appellant applied for a protection visa. The application was unsuccessful and, on 7 May 2004, he applied to the second respondent ("the Tribunal") for review of that decision. On 28 September 2004 the Tribunal affirmed the decision. On 14 March 2006 this Court ordered that the Tribunal's decision be set aside and that the matter be remitted to it for further consideration. On 6 July 2006 the Tribunal published its decision, again affirming the original decision. The appellant applied to the Federal Magistrates Court for review of that decision. He was unsuccessful and then appealed to this Court. The matter came before me on 21 February 2008. The appellant appeared in person, advancing numerous grounds of appeal. On that day I indicated that, subject to one matter, his appeal should be dismissed. 2 That matter arose out of the fact that the appellant had, prior to the Tribunal's first decision, asserted that he wished to cross-examine a witness upon whose evidence the Tribunal relied in reaching that decision. The Tribunal declined to allow him to cross-examine the witness on the ground that he had no right to do so by virtue of s 427(6)(b) of the Migration Act 1958 (Cth) (the "Act"). The Tribunal also relied on that evidence in reaching its second decision, again noting that the appellant had previously sought to cross-examine the witness and again pointing out that he had no right to do so. I was concerned that whatever the appellant's rights, the Tribunal had a discretion to allow cross-examination which it appeared not to have exercised on either occasion. I considered that it was in the public interest that the appellant have advice on that question. I therefore referred the matter to the Registrar pursuant to O 80 r 4. The matter was eventually argued at length, limited to the cross-examination question. The Court received great assistance from Mr Jones who had advised the appellant pursuant to my reference and appeared pro bono for him. Mr Knackstredt, who appeared for the first respondent (the "Minister") also offered substantial assistance. 3 I am now considering the question of costs. The Minister asserts that as the successful party, he should have his costs for the whole of the proceedings. The appellant naturally resists such an order. Not infrequently in public law matters, an unsuccessful litigant seeks to resist an order for costs on the ground that his or her case has raised a matter of substantial public importance, and that he or she should not have to pay costs incidental to the unsuccessful litigation of such matter. In my view such an argument is generally misconceived. It is not for an individual litigant to determine that litigation should be conducted at public expense simply because it is important to him or her, even if it is arguable that there is a broader public interest in it. 4 However the present case is in a different category. So-called "pro bono" work is done "pro bono publico", that is "for the public good". In referring to the matter to the Registrar I, as a member of the Court, decided that it was for the public good that the matter be investigated. Counsel was asked to assist, again for the public good, and did so on that basis. In those circumstances, the Minister should accept that ventilation of the issue was for the public good and facilitate such ventilation by meeting his own costs in connection with the relevant part of the proceedings. The public interest has, in this case, been advanced in two ways. Firstly, a litigant with an arguable case has had the benefit of its being properly argued. Secondly, the Tribunal is now aware that it has the relevant discretion. 5 In the circumstances, I order that the appellant pay the first respondent's costs of and incidental to these proceedings, up to and including the hearing on 21 February 2008, and that there otherwise be no order as to costs. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

awarding costs where a matter of public importance is raised parties should bear their own costs in relation to the litigation of such a matter costs

She applies under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for compensation for alleged unlawful discrimination under the Disability Discrimination Act 1992 (Cth) s 22 , the Racial Discrimination Act 1975 (Cth) s 15(1) and the Sex Discrimination Act 1984 (Cth) s 14(2). She is of Chinese origin. She claims that she was discriminated against by UTAS and certain of its staff members because of an (imputed) disability and her race and sex. Failing to provide me with the Overseas Postgraduate Research Scholarship ("OPRS Scholarship") that I had won in 1998. 2. Paying me only $67.39 for the first hour and $44.93 for repeated hours of tutorial work whilst the School of Management of UTAS paid about $90 per hour to the other tutors. My supervisor, Dr Dallas Hanson, told me that "if you argue about payment you cannot be anybody's PhD candidate. I had a Chinese PhD candidate in the past, who argued about payment. Then he/she left". 3. Falsely suspecting that I was in financial problem or had no money because of my Chinese origin. 4. Imputing that I had potentially suffered "serious psychological problem", then referring me to UTAS Counseling [sic] Service and treating me as if I had such a disability. 6. Terminating my PhD candidature in Oct. 1999. 3 It will be apparent that on their face complaints 1, 4 and 6 do not seem to raise any allegation of discrimination on the grounds of disability, race or sex. But in any event, having heard evidence from Ms Zhang and various members of UTAS staff, I am not satisfied that there is any factual basis for these or her other complaints. Before turning to the particular complaints, a brief chronology of her attendance at UTAS can be given. 4 In 1996 Ms Zhang applied for an Overseas Postgraduate Research Scholarship (OPRS) for study at UTAS in the following year but was unsuccessful. She made a similar application again in 1997, again without success. In 1998 she enrolled in UTAS as a fee paying PhD candidate and paid the required tuition fees. 5 She attended UTAS as a PhD candidate in the School of Management from late September 1998 and during 1999. 6 While at UTAS she claimed she was entitled to an OPRS. This issue was investigated both by the office of the Pro Vice-Chancellor (Research) and the Tasmanian University Postgraduate Association (the student union for postgraduate students). Both investigations concluded that she had not been awarded an OPRS. 7 On 7 October 1999 the Acting Head of the School of Management recommended to the Dean of Graduate Studies by Research, Professor Carey Denholm, that Ms Zhang's candidature be terminated. The recommendation stated that her supervisor had indicated he was unable to continue in that capacity and the School did not have the required skills and capacity to provide alternative supervision. 8 On 14 October 1999 Professor Denholm met with Ms Zhang in the presence of Mrs Margaret Beasley, Head of Student Counselling. Following that meeting Professor Denholm wrote to Ms Zhang outlining his investigations and discussions. I have also read your memos to your Supervisor, some of which make me very concerned. For example, on 25.9.99 you wrote "One of the advisors in the Asian Institute of Technology has even mentioned that I am too good to be in this world. I admit this now, but I don't think the world can change me nor I can change the world". This degree of unhappiness with your current situation is also contained in other correspondence provided to me by your supervisor. I note that your supervisor advised you of the free student counselling service available on campus. I note also that following our meeting on 14.10.99 that you arranged a time to meet with the Head of the Counselling Service external to this process. I would note to you that every University individual with whom I spoke expressed genuine concern about your welfare and a desire to have a positive resolution. • From documents provided it is evident that you have failed to accept decisions of university officers in relation to the matter of the OPRS. • There are numerous examples of on-going and unnecessary disputation between you and various officers within this University regarding the OPRS and other matters. • Your behaviour has impacted adversely on the working lives of members of academic staff within the School of Management. Continue your studies within the School of Management, under a set of strict conditions; (attached A) which given the extent of the relationship breakdown between you and the School, may not be feasible. 2. Transfer your candidature to another Australian University capable of offering supervision in your field. NB: (Should you decide to transfer your candidature, the University of Tasmania would refund the fees you have paid to date). Please see suggestions under B. (Rule 70) you have 14 days after receiving this notification to provide written comments to me about this recommendation. cc. Refrain from any further correspondence or discussion regarding the matter of your unsuccessful OPRS with University staff members. 2. Abide by all University and school regulations relating to procedures for higher degree candidature and use of university facilities (in particular with reference to copyright laws). 3. Provide any draft research writing (including thesis work) in a clear, proof read form. 4. Limit contact and meetings with your supervisor to one half hour session a week (Thursdays 3.30-4.00 or some other mutually convenient time). 5. Refrain from dealing directly with School staff on matters concerning tutorial employment, dealing only with the Head of School. Wollongong 2. In the following year she enrolled at the University of Wollongong where she completed her PhD studies. She currently teaches at a university in New Zealand. In fact I am expecting 2 pieces of information which are equally important to me: the approval for both Ph.D. enrolment and scholarship. Would be greatly appreciated if you could help me to check the result of my application for OPRS. As you can imagine we had many applications and the competition was intense. So I'm sorry but we cannot help there. Re PhD --- as stated in the offer of enrolment, you have been granted approval for entry into a PhD program. I hope you are able to secure the necessary funds to undertake your PhD in Tasmania. Good luck! Please allow me to consult you the following: 1. Since I will start the program in Sept. 1998, should I submit my first semester fee by Feb. 28, 1998? 2. Can I skip the 6-week Introductory Academic Program? 14 On 31 August 1998 Ms Sandeman sent Ms Zhang a UTAS form headed "Confirmation of enrolment for the purpose of granting a student visa". The form contained various course details including a start date of 1 September 1998. Alongside the word "Scholarship" appeared the words: "OPRS --- Overseas Postgraduate Research Scholarship". 15 Shortly prior to 20 September 1998 Ms Sandeman emailed Ms Zhang asking whether her visa had been approved yet and requesting flight details. Ms Zhang replied advising she had received her visa and giving flight details. She said she would "start to check in" on 25 September. It is true? This should not have been on the CEOS form. It was a record that you had applied for the OPRS scholarship in the past. 17 Thus it was very clear both in February 1998 and in September of that year, before Ms Zhang arrived in Tasmania, that she had not received an OPRS and that the statement on the form was an error. That Ms Zhang was aware of this is shown by an email she sent to Ms Sandeman on 1 June 1998. In this email Ms Zhang said that she had applied for a "Non-independent Immigration visa" [sic] in 1996 assuming that in case she could get "the permission" she may pay less fees for the PhD. She realised later that the assumption was not true and withdrew her application. However, she was "last weekend" told by friends that those who withdrew an application for a non-independent immigration visa would not be granted a student visa "within few years in most cases". While trying to find the way out, I am thinking it might be helpful if I can get your assistance. May it be possible for you to send me a letter from University of Tasmania indicating that "University of Tasmania has decided to award me a scholarship for my Ph.D. research", which is not true of course, but will help me to get the student visa? I promise I will use it for the purpose of applying the student visa only. To prove what I claim is reliable, I will send you the fees for the first semester, AUD6,524, with another USD10,000 to save in University of Tasmania for my further tuition fees only as soon as I am confirmed that you or University of Tasmania can help me. Other expenses will be brought with me while I am leaving Bangkok for Tasmania in Sept. 1998. It is against the policy of the University. Dear Judy, please confirm whether it is still US$4188. 20 Two things emerge from this evidence. First, it is clear beyond argument that before Ms Zhang arrived at UTAS she knew she did not have an OPRS. Secondly, she is a person quite willing to lie, and implicate others, if it will be to her advantage. She is not a person of credibility. I do not accept her evidence where it is in conflict with others. He is currently Associate Dean of Research. He has supervised three successful PhD students at UTAS. Two of these are current staff members at UTAS and one is working at the University of Queensland. One of the three was awarded a Dean's commendation, one of only nine awarded out of more than 100 PhD graduates in UTAS for that year. 22 His involvement with Ms Zhang was as her supervisor. Initially it was intended that Associate Professor Tony Hocking be the primary supervisor because he had experience in International Economics. This was proposed in December 1997 in response to Ms Zhang's initial application to be a candidate. However she did not commence until 1998, by which time Associate Professor Hocking had decided to retire. 23 Dr Hanson denies telling Ms Zhang that if she argued about payment she could not be anybody's PhD candidate or that he had a Chinese PhD student in the past who had argued about payment then left. Prior to supervising Ms Zhang he had never supervised a Chinese PhD student. I accept Dr Hanson's evidence. Quite apart from her credibility problems, Ms Zhang's allegation is inherently unlikely. Dr Hanson points out that appointment of tutors was a matter for the Head of School and Ms Zhang was not taking tutorials in any subject he was involved in. He had nothing to do with any tutorial work she did. The rate was set by UTAS under the relevant Staff Agreement. It was not possible to pay a tutor more or less than the going rate. 24 There was evidence from Mr John Horder, the Manager, HR Systems and Administration at UTAS. Having searched UTAS records he found that the rates paid to Ms Zhang were in accordance with the Academic Staff Agreement 1997-1999. There was no record of anyone having been paid for conducting a tutorial at or about the rate of $90. There was only one staff member who was paid more than the rate of $67.39 per tutorial paid to Ms Zhang. That person was paid the higher tutorial rate of $79.86 per tutorial which was the rate set out in the agreement for tutorials "where full subject co-ordination duties are included as part of normal duties or the employee holds a relevant doctoral qualification". All other tutors were paid the same rate as Ms Zhang. He said he "certainly did not suspect that she had financial problems... because of her Chinese origin". He did not treat her any differently from any other student because of any suspicions about her financial situation. 26 Dr John James (Jim) Garnham, a Senior Lecturer in the School of Management, also gave evidence that it was generally the case that postgraduate students have financial constraints to some extent. Ms Zhang had the added burden of being a full fee paying student. However he did not have any specific knowledge about her financial situation and certainly did not suspect that she had financial problems because of her Chinese origin. He did not say anything to her to indicate knowledge about her financial situation. 27 I am satisfied there is no substance in this allegation. Dr Hanson says, and I accept, that in a small School with very few postgraduate students, at least the initial part of the review process was relatively informal. The supervisor and the candidate would meet and complete the review which would then be submitted to the Head of School. Dr Hanson points out that in her affidavit Ms Zhang acknowledges that he went to her office with a review form and had a conversation with her about her progress before making an assessment and asking her to sign the form. 29 In any event, if there was any failure in this regard, which I do not accept, there is no suggestion that such failure was a result of any statutorily prohibited discrimination. In 1999 its annual conference was held in Tasmania. 31 Ms Zhang alleges that Dr Hanson did not submit her paper to the conference "and/or" did not inform her of the decision of the conference about it. She asked him about the paper a few times. Once he said: "It may be accepted, may be refused". She emailed him asking about the result of the paper but "he never provided any feedback to it". She also alleges that Dr Garnham did not submit her paper to the conference "and/or" did not inform her of the conference's decision. 32 The conference was not a UTAS event although Dr Garnham was a convenor of the organising committee. ANZAM issued a general invitation for the submission of papers to be considered for presentation at the conference. Papers were to be sent to the organising committee direct and did not need to go through UTAS or the School of Management. Each paper received by the organising committee was reviewed by two referees who did not know the identity of the author of the paper. The referees made recommendations as to the paper's suitability for, and appropriate manner of, presentation. 33 It was not part of Dr Garnham's duties as Acting Head of School to inform anybody who had submitted a paper for consideration of the decision of the organising committee about that paper. The organising committee wrote directly to persons who had submitted papers advising of the committee's decision and any feedback about the paper. Ms Zhang was not treated any differently. 34 Dr Hanson said that Ms Zhang gave him a paper she wanted to submit to ANZAM. She asked him for some suggestions, which he gave to her. He returned the paper to her with the suggestions and said something like: "Best of luck. It is not really good but it might get up". Dr Garnham confirms it was the responsibility of ANZAM to assess any papers submitted to it for consideration and to communicate the results to those who had submitted papers. 35 This complaint is without substance factually and in any case discloses no unlawful discrimination. He allegedly told her on 22 December 1998: "The scholarships are for faculty members, you are not a faculty member". In March 1999, seeing that she did not want to change to be a part-time PhD student, he told her: "I don't have a scholarship". At another occasion when she asked about the possibility of applying for a scholarship at the School he said "very limited". 37 Dr Hanson explained that faculty scholarships are offered occasionally when funds are available but are not a regular offering. For example, there were none in 2007 when he swore his affidavit. He could not recall if any faculty scholarships were offered for 1999. If any were offered Ms Zhang would have been eligible to apply. They are not for "faculty members" but for students. He denies telling Ms Zhang they were only for faculty members and would not have discouraged her from applying for one. She could have applied for any faculty scholarship and any such application would have been considered by the Dean of Faculty and the Head of School on academic merit alone. 38 Ms Zhang alleges that Dr Garnham advised her by email that the Faculty of Commerce and Law had "no scholarship" in March 1999 "even though the information indicated that the scholarship was available". He allegedly copied this email to her supervisor advising the supervisor should also tell her that there was no scholarship. 39 Dr Garnham has no copy of, or recollection of having sent, such an email. Ms Zhang did not produce it. 40 There was no motive for either Dr Hanson or Dr Garnham to give Ms Zhang false advice about the availability of scholarships. I accept their evidence. This complaint is not made out. 42 Ms Ormandy denied obtaining any personal information about Ms Zhang from the counselling service or asking the counselling service for it. Ms Ormandy did speak to Mrs Beasley, the Head of Student Counselling, prior to Ms Zhang's appointment with Mrs Beasley. Ms Zhang had complained about feeling unsafe when working at UTAS on her own late at night and Ms Ormandy was concerned for her safety and welfare. She established that the person Ms Zhang thought might be a prowler was actually a UTAS Security Officer. Ms Ormandy requested that Mrs Beasley let her know if she thought extra precautions were needed to protect Ms Zhang. She emphasised to Mrs Beasley that she was not seeking any personal information about Ms Zhang. 43 There was in evidence a letter dated 20 October 1999 (exhibit K), labelled "DRAFT Confidential Memorandum" from Mrs Beasley, who is a psychologist, to Ms Ormandy. Ms Ormandy denied receiving it. It was a draft sent to Ms Zhang for comment. The probability is that she declined permission for it to be sent and therefore it was never sent to Ms Ormandy. Ms Ormandy never "obtained" it. She also alleged that Professor Denholm imputed that she had "potentially metal health problem" and treated her as if she had such a disability. 45 Dr Hanson denies that he "imputed" to her any serious psychological problem but did think it was possible she had problems with which a counsellor might help. His observations were that she was "antagonising everyone she came into contact with at the University, not just University academic or administrative staff but student association people as well". 46 Dr Hanson therefore suggested that she contact a counsellor but left it up to her whether she did so. He had no authority to "refer" someone to counselling. 47 Having seen Ms Zhang giving evidence, Dr Hanson's assessment of her does not come as a surprise to me. Ms Ormandy said that at a student function Ms Zhang was upset and distressed and threw a plate of food at her. 48 Professor Denholm as Dean of Graduate Studies by Research had responsibility to ensure appropriate levels of pastoral care. He did have concern about Ms Zhang, including concern for what might be the potential for suicidal behaviour. In particular he expressed concern following an email she wrote on 25 September 1999 in which she agreed that she was "too good for this world". 49 He discussed these concerns with Ms Zhang. It was apparent to him that she was exhibiting signs of stress; she was upset and angry and in the course of that conversation he suggested to her the possibility of counselling. Mrs Beasley was present to assist Ms Zhang to talk through some issues. At the end of the meeting it was agreed that Ms Zhang could meet with Mrs Beasley independently for assistance as she was very upset. Professor Denholm is a psychologist. In doing that I did not "impute" any mental problems to (Ms Zhang). It was apparent that she was stressed and I treated her no differently from the way I would have treated any PhD candidate in the same circumstances. 50 I accept Professor Denholm's evidence that he dealt with Ms Zhang in a way consistent with his professional expertise and his duty to her and UTAS. He was trying to help her, not discriminate against her. There is no basis for a finding of discrimination on any of the statutory grounds. These do not form part of the complaints properly before the Court under Order 81. In any event, I am satisfied they are without substance and do not raise questions of unlawful discrimination. The application will be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

applicant phd student at university whether actions by university staff constituted unlawful discrimination on disability, race and sex grounds discrimination

The terms of the settlement are contained in the Deed of Settlement (Deed) and Settlement Distribution Scheme (Scheme) annexed to the affidavit of Mr Bernard Murphy sworn 25 August 2008. These are my reasons for those orders. The applicant represents a group of investors who acquired shares in the respondent between 19 February 2002 and 26 May 2003 and who claim to have suffered loss as a result of the respondent's conduct. It is alleged that the respondent breached its continuous disclosure obligations and/or its obligation not to engage in misleading and deceptive conduct. After the trial but before judgment was delivered the parties advised the Court that they had agreed, in principle, to the settlement of their dispute and, pursuant to s 33V of the Federal Court Act , would be seeking the Court's approval of the settlement. (2) If the Court gives such an approval, it may make such orders as are just with respect to the distribution of any money paid under a settlement or paid into the Court. I made orders on 21 May 2008 to facilitate this process which, in general terms, involved group members sending proof of their share trading to Maurice Blackburn, the solicitors for the applicant, by a specified date. At a hearing on 14 August 2008, I heard argument as to whether persons who had not submitted their proof by the specified date should for that reason be excluded from participating in the settlement. On 26 August 2008 I made orders in relation to this issue. The reasons for these orders and the process by which the number of participating group members was determined are described in my reasons for judgment: Dorajay Pty Ltd v Aristocrat Leisure Limited (2008) 67 ACSR 569. This was whether, as I had presided over a full hearing of the matter and had reserved my decision, the application should be heard by another judge. My concern was that, should I not approve the settlement, or should the settlement not proceed for any other reason, I might be embarrassed delivering judgment. In the course of hearing the application for settlement approval the Court will not only be apprised of confidential information, such as legal advice given to the parties by their respective lawyers but will also, from the proposed terms, become aware of the concessions that both parties are prepared to make. This may create a perception of bias should it then be necessary to deliver judgment in the matter. 5 On the other hand, the fact that I had heard full argument for and against the applicant's claims meant that I was in a position to make an informed decision as to the fairness of the settlement. Moreover, my familiarity with the applicant's claims and the circumstances that gave rise to them arguably made the process of approving settlement much more efficient with a consequent saving of costs for all concerned. It was for these reasons that the parties agreed that it would be appropriate, indeed desirable, for me to determine the application for approval of the settlement. Her Honour has familiarity with the relevant issues and has seen them refined and brought into sharp relief at trial. Preliminary (and perhaps more than preliminary) views as to the strengths and weaknesses of the competing contentions have been formed. All of the advantages of this familiarity would be lost in the event the application was dealt with by another judge. 6 The respondent expressed a similar view. Prior to the hearing both parties gave informed consent to the Court receiving the confidential information, and waived irrevocably any objection they could otherwise have made to my delivering the judgment after having received confidential information in the course of the settlement hearing. 7 The right of parties to waive possible objections to the constitution of the Court was accepted in Smits v Roach [2006] HCA 36 ; (2006) 227 CLR 423. The general principle is not in contest in this appeal. The authorities on the point were examined by Dawson J in Vakauta v Kelly. It is unnecessary to repeat what was said by Dawson J. It is as well, however, to repeat what was said in the joint judgment of Brennan, Deane and Gaudron JJ in the same case concerning the justice of the matter, because it is directly in point. In Vakauta v Kelly, the ground of apprehended bias was related to certain comments made by a trial judge in the course of proceedings. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. Maurice Blackburn, however, do not act for all group members but only the "funded group members". These are the group members who have retained Maurice Blackburn and who, in addition, have entered into litigation funding agreements with IMF (Australia) Ltd. Those group members who have neither retained Maurice Blackburn nor entered into an agreement with IMF are referred to as "non-funded group members". Maurice Blackburn have a duty to the non-funded group members to conduct the proceeding in a manner consistent with their interests; King v AG Australia Holdings Ltd [2002] FCA 872 ; (2002) 121 FCR 480 per Moore J at 489. I accept the assurance of the applicant's solicitors, given both in writing and orally at the hearing of the application, that they are aware of this duty and, in submitting that I should hear the application, and in waiving their right to object to my delivering judgment, should that be necessary, they have taken the interests of the non-funded group members into consideration. 9 It is also necessary to consider that while a judge must recuse him or herself where bias is reasonably apprehended, it is equally fundamental that a judge not recuse him or herself where no such issue in reality arises; Ebner v Official Trustee In Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 348. Having considered the issues and submissions discussed above, I was satisfied that the proper course was for me to hear the application for settlement approval. Section 33V(1) of the Act provides that a representative proceeding may not be settled or discontinued without the approval of the Court. The purpose intended to be served by s 33V was stated succinctly by Branson J in Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 142 ALR 177 at 184. His Honour observed at [15] that he was not concerned so much with the position of the applicant, who was represented by solicitors and counsel, but with other group members, many of whom are not protected in this way. In Williams v FAI Home Security Pty Ltd (No. Ordinarily...the court will take into account the amount offered to each group member, the prospects of success..., the likelihood of group members obtaining judgment for an amount significantly in excess of the settlement offer, the terms of any advice received from counsel and from any independent expert in relation to the issues which arise in the proceeding, the likely duration and cost of the proceeding... and the attitude of the group members to the settlement. In Darwalla Milling Co Pty Ltd v F Hoffmann-La Roche Ltd (No. 2) (2007) 236 ALR 322, Jessup J took a slightly different approach from Goldberg J. His Honour observed at [3] that each case is dealt with on its own merits and by reference to specific factors which might raise serious doubts as to fairness. His Honour said at [35] that he could see no particular warrant for incorporating into Part IVA of the Act the requirements of the rules of the court of an overseas jurisdiction. Jessup J at [50] also said that he did not consider that it was the Court's function under s 33V to second-guess the applicants' advisers as to the answer to the question whether the applicants ought to have accepted the respondents' offer. There will rarely, if ever, be a case in which there is a unique outcome which should be regarded as the only fair and reasonable one...the court should, up to a point at least, take the applicants and their advisers as it finds them...So long as the agreed settlement falls within the range of fair and reasonable outcomes, taking everything into account, it should be regarded as qualifying for approval under s 33V. 13 Those monies are to be distributed in accordance with the Scheme. The Deed incorporates the agreement between the applicant (representing its own interests and the interests of all other group members) and the respondent resolving the rights at issue in the litigation. The Scheme is directed to regulating the distribution of payments to be made by Aristocrat, and provides a "Loss Assessment Formula" for the calculation of each participating group member's entitlement to any distribution of the money under the proposed settlement. 14 Evidence concerning the Loss Assessment Formula was given in the affidavit of Mr Murphy referred to at [1] above. Mr Murphy is a principal of Maurice Blackburn, who, with others, has the care and conduct of the proceeding. According to Mr Murphy, the Loss Assessment Formula "operates to ensure that both categories of Participating Group Members [i.e. funded and non-funded] recover similar proportions of their estimated losses in the hand". This information is privileged and confidential. The Loss Assessment Formula has not been, and under the Deed and the Settlement Distribution Scheme will not be, disclosed to Aristocrat. It is to remain confidential save that Maurice Blackburn may disclose it to group members upon receipt of signed confidentiality undertakings from them. 15 I ordered that the Loss Assessment Formula, which was annexed to the abovementioned affidavit, remain confidential. That order also applied to two other documents annexed to the affidavit, namely an opinion by the applicant's solicitors regarding the appropriateness of the proposed settlement and an opinion by the applicant's counsel regarding the fairness, reasonableness and adequacy of the proposed settlement. 16 Having read those confidential documents in conjunction with the affidavit to which they were annexed, as well as several other affidavits filed by the applicant in support of the settlement approval, I am satisfied that the amount proposed to be paid by the respondent to the participating group members is fair, reasonable and adequate. The two opinions make it clear that much thought has been given to advising the applicant in relation to the fairness, reasonableness and adequacy of the settlement, including issues such as the prospects of success on various issues in the dispute, risks if the matter proceeded to judgment and the reasonableness of the settlement sum. One can assume that the respondent is in a similar position. The difference in the amounts allocated to funded and non-funded group members is explained by the fact that the funded group members have undertaken liability for costs of the action through the litigation funder. The explanation for not refunding to Aristocrat the balance of any money remaining after distribution to funded group members is that "$109 million is very close to the actual assessed value of the claims of the funded group members". 18 At the hearing of the settlement approval, Mr Lee, counsel for the applicant, observed that liability in the sense of Aristocrat having contravened its legal obligations was not seriously in dispute. It is a matter in which there is a degree of --- what might be described as ambiguity, at least until a matter such as this gets to the intermediate court of appeal stage or perhaps further... that [has] been taken account of in advising both parties, one assumes, by legal representatives in reaching the settlement that has been reached. 19 The ambiguity to which Mr Lee referred is tempered by the fact that, in the course of assessing a negotiated settlement, both parties (and indeed the Court) had the advantage of having heard full argument on the issues in dispute. The parties were thus in a position to perceive not only their opponent's best case but the weaknesses in their own. They can, I think, be understood to be rather better informed about the advantages and disadvantages of settlement than is usually the case. This is an additional consideration in my decision that the settlement amount that counsel and solicitors have agreed upon is in the interest of all parties, including the non-funded group members, and within the range of what I would regard as fair, reasonable and adequate. 21 I do not need to review in detail each aspect of the Scheme. I will, however, comment on several key aspects of the Scheme and explain why I am satisfied that they are fair, reasonable and adequate. 22 Clause 3 of the Scheme provides that in acting as administrator Maurice Blackburn has an obligation to do so on behalf of group members as a whole, and may not act as lawyer for individual group members in relation to their particular claims. Maurice Blackburn has also undertaken not to seek to recover either from the settlement sum or from individual group members any costs they incur in acting for individual group members or in discharging their function as administrator (those costs are discussed in more detail at [30] et seq below). There is an exception to this in clause 7, which obliges a group member seeking review of Maurice Blackburn's assessment of the value of their claim to pay for the costs of that review assessment, and, if required by Independent Counsel, provide security for costs of the review assessment. Independent Counsel is defined in the Scheme as being "an independent member of the Victorian Bar empowered under this [Scheme] to finally determine any objection to an Assessment Notice or Notice of Claim Data". 23 It is apparent, however, that there is little scope for much serious dispute as to the value of individual claims. This is so because the Scheme primarily provides for the application for specific formulae to objective data. The only real scope for discretion on Maurice Blackburn's part is to be found in clause 4, which relates to submission and assessment of claims. 24 It is important to note, however, that this provision is for practical purposes now largely historical, as all proofs of claim to be considered have been received by Maurice Blackburn (and in relation to the funded group members, already assessed). Only the claims of the non-funded group members, including those late non-funded group members who were included in the proposed settlement as a result of my judgment of 26 August 2008, remain to be assessed. The Scheme additionally provides for Maurice Blackburn to send those group members who have not yet been assessed, a Notice of Claim Data inviting that group member to correct errors made on the basis of their proof. Once any issues have been resolved the value of the claim is assessed by applying the Loss Assessment Formula to the objective data. This task involves, in the words of Mr Armstrong, "the application of relatively simple equations to data that has been objectively verified. The number that is produced is the number that is produced". There is, as I commented at the hearing, scope for error but not for discretion. The group member is then sent a Notice of Assessment. Any dispute over a group members' assessment is to be reviewed by Independent Counsel, whose decision is binding except in relation to questions of law. As well as being a primary basis for my satisfaction as to the fairness, reasonableness and adequacy of the Scheme in general, the lack of discretion afforded to the administrator under the Scheme is an additional factor in favour of approving Maurice Blackburn to act as administrator. 25 The entitlement to seek a review assessment is extended to Aristocrat in clause 7.9. This raises an issue in respect of the $27 million made available for distribution to the non-funded group members. As mentioned above, any balance that remains following distribution is to be refunded to Aristocrat, which means that Aristocrat itself has an interest in challenging the assessments of non-funded group members' claims. If Aristocrat requests a review assessment, it is treated as a participating group member for this purpose, and accordingly bears the costs of the review assessment calculated on a solicitor/client basis (in addition to any other amounts Aristocrat is required to pay under the Deed). 26 Clause 10 of the Scheme deals with the litigation funder, IMF, which is a party to the Deed. Clause 10 is designed to set up and regulate a process for letting the funder know as soon as possible how much its clients, as it were, are going to receive, and then for IMF to let the administrator know, 'This is what we are entitled to under our funding agreements with each of those individuals'. Clause 10.3 requires specific mention... because it is intended to require Maurice Blackburn to act on the information that they are given by IMF in relation to IMF's entitlements. The purpose for that is, if there is a dispute between the funder and a particular funded group member, they can sort it out separately. It should not hold up this process. 27 Clause 11 deals with the distribution of the settlement sum once the value of all claims, including preliminary payments to funded group members, has finally been assessed. It is unnecessary for me to comment on the details of this clause. I note, however, that clause 11.9 provides that the completion of the distribution of the settlement sum shall satisfy any and all rights, claims or entitlements of all participating group members and all other group members in or arising out of the proceeding. Those group members not participating in the settlement are nevertheless bound by the outcome of the proceeding, a point plainly made on several occasions in communications between Maurice Blackburn and non-funded group members. That all group members are bound is, as Mr Armstrong observed, "not only appropriate but necessary for the resolution of these kinds of proceedings and in the interests of justice, having regard, frankly, to Aristocrat's entitlement, to the finality of the claims against it so far as Part IVA permits finality to be given". 28 The final clause I wish to note, apart from provisions relating to costs and administration costs, is clause 12, which provides that Maurice Blackburn may refer any issues arising in relation to the Scheme to the Court. 29 I am satisfied in the circumstances that the Scheme provides for the fair, reasonable and adequate distribution of the settlement sum. According to the affidavit of Mr Murphy, referred to at [1] above, the $8.5 million cap has been reached. On the basis of this affidavit, and that of independent expert costs consultant Mr Joseph Mazzeo, who was engaged to provide an opinion as to the reasonableness of the total amount of Dorajay's costs, I am satisfied that the total costs incurred by Dorajay were reasonable. In my opinion, [Maurice Blackburn] has properly charged its fees and disbursements pursuant to its retainer agreement. In my opinion no significant costs or disbursements have been incurred unnecessarily or inappropriately. Accordingly, I am of the opinion that the amount proposed to be recovered is fair and reasonable in the circumstances. 31 The amount of Dorajay's costs reflects the duration of the proceeding, which was commenced in 2004, the complexity of the matter and novelty of the issues raised, and what senior counsel for the applicant described at the trial as the "years of interlocutory skirmishing" leading up to the hearing. It also reflects the fact that settlement has only been able to be reached after the full hearing of the matter, rather than before, as is more common. 33 The Scheme provides that, where the $8.5 million cap has been reached, administration costs will be paid from the interest which accrues on the settlement sum paid by Aristocrat, with any interest not so applied to be included in the distribution to group members. In accordance with clause 9.1, any payment of administration costs from the interest accrued on the settlement sum requires the approval of the Court. Accordingly, I expect that more than $136 million will be available for distribution among Participating Group Members. 34 In these circumstances, I am satisfied that the provisions in the Deed and Scheme in relation to costs and administration costs are fair, reasonable and adequate. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

representative proceedings proposed settlement of proceeding after trial but prior to delivery of judgment approval of settlement by the court constitution of the court whether terms of proposed settlement are fair, reasonable and adequate practice and procedure

The applicant seeks review of a decision of the first respondent to refer to the second respondent a notice of motion seeking a suppression order. The first respondent is a registrar in the Queensland District Registry of the Court. The second respondent is a judge of the Court. The decision that the applicant seeks to review, and all other events allegedly relevant to the application, occurred in Queensland. 2 This matter was listed for a directions hearing at 9:30 am on 28 February 2006. The applicant contacted the Court seeking that the directions hearing be adjourned. She claimed that she would be unable to prepare for directions on that day because she had a hearing in another matter before Finkelstein J that afternoon. She was informed by the Court that, as the matter was listed for first directions only, an adjournment would not be granted. 3 Although the Court organised for video conference facilities to be available for the applicant in Brisbane, the applicant did not appear for the directions hearing of 28 February 2006. It appeared that the respondents had not been served with any documents in this matter and there was no appearance for them. The Court adjourned the hearing of further directions in this proceeding. 4 After the directions hearing, the Court contacted the applicant and informed her that, since the application concerned events that occurred in Queensland and persons there, it was proposed by the Court to transfer this (and another) matter to the Queensland District Registry. The applicant was given an opportunity to file submissions regarding this issue. 5 The applicant filed submissions opposing transfer. I accept that, as the applicant submitted, the other matter should not be the subject of the transfer order that I propose to make. In relation to the present proceeding, the applicant also submitted that "since the matter is against the Queensland Registrar and the Queensland judge, it cannot be transferred to the Queensland Registry [because] the respondents will have to act both as the respondents and the judicial officers. " For the reasons stated below, I reject this submission. 6 The principles that apply to transfer are well settled. It should be exercised flexibly having regard to the circumstances of the particular case. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. It cannot and should not, in our opinion, be defined more closely or precisely. The applicant resides in Queensland. Both respondents are resident in Queensland. Similarly, all events underlying the dispute occurred in Queensland. In any other case, all the relevant factors would support the contemplated transfer. The applicant submits, however, that the respondents will be subject to a conflict of interest if the matter is transferred to Queensland. It is true that the respondents are a registrar and judge whose responsibilities in large part concern the work of the Court in Queensland. It does not follow from this, however, that the applicant's case cannot properly be dealt with in the Queensland District Registry, which has the benefit of more than one registrar and judge. 8 For these reasons, I would order, pursuant to O 10 r 1(2)(f) of the Federal Court Rules 1979 , that proceeding VID 1592 of 2005 be transferred to the Queensland District Registry of this Court . I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

transfer of proceedings federal court rules , o 10 r 1(2)(f) practice and procedure

Mr Nassif has applied for an order quashing the decision of the Minister. By his amended application, Mr Nassif claims that the Minister failed to warn him that she did not intend to treat the best interests of a child, namely Joshua Young, as a primary consideration in making the decision, and additionally failed to consider whether she was required to treat Joshua's best interests as a primary consideration (see Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273). Joshua, who at the time of the Minister's decision was 12 years old, is the son of Mr Nassif's fiancée, Ms Sharon Young. It is also uncontentious that she did not treat the best interests of Joshua as a primary consideration in making her decision. 3 The parties agree that in the circumstances of this case the Minister was only obliged to treat the best interests of Joshua as a primary consideration if Mr Nassif had a "parental or other close relationship" with Joshua. The phrase "parental or other close relationship" comes from Ministerial General Direction No 21. The parties also agree that the information before the Minister was such as to require her to turn her mind to whether Mr Nassif had such a relationship with Joshua. 4 The only issue to be determined is thus whether it is appropriate for the Court to conclude, on the balance of probabilities, that the Minister did not give consideration to whether the relationship between the Mr Nassif and Joshua was a "parental or other close relationship". For the reasons set out below I am of the view that it is appropriate for the Court to so conclude. The statement records that, after concluding that she was empowered by s 501(2) of the Act to cancel Mr Nassif's visa, the Minister turned to consider whether to exercise her discretion to do so. I consider that my Direction properly indicates how the powers and functions of the kind here should be exercised. Accordingly, I gave primary consideration to the protection of the Australian community, the expectations of the Australian community and the best interests of the children. I then considered other relevant considerations in relation to Mr NASSIF. The material did not suggest, for example, that Mr Nassif and Joshua resided in the same household, that Joshua was financially dependent on Mr Nassif or that Mr Nassif was involved in the making of important decisions concerning Joshua's upbringing and education. However, it has been conceded that the material was adequate to raise for the Minister's consideration whether the relationship was sufficiently close and familial in character to be a "close relationship" within the meaning of the phrase "parental or other close relationship" in Ministerial Direction No 21. 11 No direct evidence is available on the issue of whether or not the Minister gave consideration to the nature of the relationship between Mr Nassif and Joshua. It is thus necessary to determine whether, on the whole of the available evidence, it is appropriate to infer that the Minister overlooked the need to give consideration to the nature of that relationship. 12 Four principal factors were relied upon as indicating that the Minister did give consideration to the nature of the relationship. First, the statement of reasons asserts that the Minister proceeded in accordance with Ministerial Direction No 21. Ministerial Direction No 21 draws a distinction between persons under the age of 18 years with whom the visa holder has a "parental or other close relationship" and others. It is only the former category whose best interests are required to be regarded as a "primary consideration". Therefore, it was argued, the fact that the only reference to Joshua in the statement of reasons appears under the heading "Other Considerations" suggests that the Minister decided that he was not a person with whom Mr Nassif had a "parental or other close relationship". 13 Secondly, the statement of reasons contains the assertion that the Minister had "considered all relevant matters including ... the direction ... and all evidence provided on behalf of/and by Mr Nassif". 14 Thirdly, the Minister, although required to give reasons for her decision, was not required in those reasons to give detailed consideration to the evidence. 15 Fourthly, the fact that the statement of reasons refer simply to the "relationship" between Mr Nassif and Joshua suggests that the Minister considered the nature of that relationship and chose not to characterise it as "parental" or "close". 16 I agree that the above factors carry weight. However, they must be weighed against the following considerations. In outlining the process adopted by her in determining whether to exercise her discretion to cancel Mr Nassif's visa, the Minister asserted that she "gave primary consideration to ... the best interests of the children" (see par 11 of the statement of reasons which is set out in part at [6] above). Under the heading "Primary Considerations", the statement of reasons makes reference to Mr Nassif's adult children only. An inference therefore arises that they are the children referred to in par 11 and consequently the only children considered by the Minister in the context of primary considerations. 17 Additionally, Mr Nassif's children are referred to under the heading "Primary Considerations" only for the purpose of recording that they are over the age of 18 years (that is, not children whose best interests were a primary consideration). An inference therefore arises that Joshua would also have been referred to in this section if the Minister had turned her mind to whether or not he was a child whose best interests were a primary consideration. 18 The above inferences are strengthened by reference to the Departmental minute which outlined for the Minister the issues for her consideration. They will be considered under "Other Considerations" below. Indeed, the Minister is nowhere advised by the minute that she should give consideration to whether the relationship between Mr Nassif and Joshua is a "parental or other close relationship". 20 Having regard to all of the evidence and other material to which the parties drew my attention, I consider it appropriate to draw the inference that the Minister did not give consideration to whether the relationship between Mr Nassif and Joshua was a "parental or other close relationship". In doing so I place particular weight on the failure of the Departmental minute to identify the nature of the relationship between Mr Nassif and Joshua as an issue for the Minister's consideration and the failure of the statement of reasons explicitly to address the issue. 22 The substantive relief claimed by Mr Nassif is an order in the nature of certiorari quashing the decision of the Minister and an order in the nature of mandamus directing the Minister to consider his application for a visa. No submissions were advanced in support of the claim for an order in the nature of mandamus. Nor was my attention drawn to any application made by Mr Nassif for a visa. The name of the respondent be changed to Minister for Immigration and Citizenship. 2. An order in the nature of certiorari issue quashing the Minister's decision dated 19 October 2006 to cancel the applicant's visa. 3. The respondent pay the applicant's costs.

minister's decision to cancel applicant's visa under s 501(2) of the migration act whether minister failed to consider whether she was required to treat the best interests of the 12 year old son of the applicant's fiancée as a primary consideration whether minister considered whether the relationship between the applicant and the child was a "parental or other close relationship" within the meaning of that phrase in a ministerial direction held: minister did not give consideration to whether the relationship was a "parental or other close relationship". migration